Busby v. State , 177 Miss. 68 ( 1936 )

While the majority opinion is accepted as correct in reversing this judgment because of instructions, it seems to me that the outstanding ground upon which our decision should be based is the fundamental proposition that the trial of appellant did not conform to the essential requirements of due process of law.

It is highly desirable that trials for crime should not be unreasonably delayed, and that justice should be fairly prompt, but in such matters the speed limit can be exceeded to the detriment of a proper administration of the law, as well as those other excesses in speed which produce dangers to life and limb. That there was an excess of judicial speed in this case, a statement of the facts in that regard will at once disclose.

The homicide occurred about ten o'clock on the morning of May 29, 1935. Appellant was arrested within an hour and placed in jail. That night he was taken to jail in another county. If appellant had any friends or relatives who could or did take any effective interest in him, the record does not disclose it. Circuit court convened on Monday, July 1, 1935, for a four-week term. On the night before appellant was brought back to the local jail. Immediately after the noon recess on the first day of court the grand jury returned an indictment against appellant for murder, and at two-thirty P.M. of the same day appellant was arraigned. On being asked by the court whether he had counsel, appellant replied that he had none, and that because of his poverty he had been unable to procure the services of counsel. Thereupon the court appointed as his counsel a member of the bar who was unacquainted with appellant or with the facts of the case; and, so far as the record discloses without any inquiry to appointed counsel as to how long it would require him to get ready in the defense, the court set the case for Wednesday morning at eight-thirty o'clock, July 3, 1935, and required counsel to announce whether a special venire was desired, and, reply being made in the affirmative, a special venire was at once drawn and placed in the hands of the sheriff.

That afternoon appointed counsel had a forty-five-minute consultation with appellant, at which appellant told counsel that the only eyewitnesses to the homicide were himself and the mother of the deceased; that he knew of none other, except his wife, who when she reached the courthouse the following day was found to be in such a hysterical condition as to be unable to render any service either in consultation or as a witness. Counsel spent a part of that night in a review of the law in such cases, and, although unwell, devoted as best he could the following day and a part of that night to searching for witnesses. Among others, he went in search of one Dean, whose name appeared as a witness on the back of the indictment, but was unable to find him, nor did he locate any other witness who could throw material light on the facts.

On Wednesday morning appointed counsel was still unwell, having been so the day and night before, and he requested the aid of additional counsel, and this additional counsel, who also knew nothing of the parties or the facts, entered at once into the trial, and conducted the burden of the examination of the witnesses. On the trial there appeared one Harvison as a witness for the state, and who claimed to have been an eyewitness, and his testimony was of the most damaging character. The trial was concluded on Wednesday, July 3, 1935, and resulted in a verdict of guilty with a death sentence.

Some days after the trial and before the adjournment of the term a motion was made for a new trial, wherein the above facts were set forth and proved by witnesses, and the further facts were shown that the witness Dean and two other witnesses had been found who would testify, and who did testify on the motion for a new trial, that the witness Harvison was not at the scene of the homicide and could not have witnessed the incriminating facts testified to by him in the trial, and without whose testimony a different result might have been reached, and probably would, and certainly as to the death penalty, assuming that the jury was without any bias whatever.

In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, the Supreme Court, in announcing that the right of one charged with a capital offense to be represented by counsel is a fundamental requisite of due process of law, declared that that requirement must be met in substantial effect, and in a real sense, and that, if a reasonable opportunity for consultation, thoroughgoing investigation, and preparation was not afforded between the time of the appointment of counsel and the date set for trial, the right of representation by counsel would be as much denied as if such representation were refused by the court in the trial itself.

There is no other responsibility in life so serious as that laid upon counsel in the defense of a capital case. No lawyer, although a veteran of a thousand battles in the criminal courts, would willingly accept employment even for an adequate cash fee, when the employment is on the afternoon of Monday, and the trial is to be had beginning on the following Wednesday morning, unless the facts and all the facts had theretofore been carefully investigated by a competent and reliable person, and all the possible witnesses were known at the time, and were immediately available for consultation. But that advantageous situation was not present here. On the contrary, the appointed counsel had to start at the beginning, and make the entire investigation both as to the law and the facts, including the hunt for witnesses, and with a client who could render but little, if any, aid. Moreover, it is of vital importance that counsel, suddenly brought into a capital case of which he knows nothing, should have a reasonable time to inquire into the state of the public mind, and as to whether there has been any general prejudgment of the issues, or whether there is any special group that is active in behalf of the prosecution, and in that connection to examine into the names drawn on the special venire taken from throughout the county. Here there was, in effect, no time at all for the inquiries next above mentioned, when considered along with the fact that appointed counsel was obliged to make all the other preparations and investigations, including searches for witnesses. That the time here allowed was unreasonably insufficient under the full facts of this case is so clear that there could scarcely be any serious disagreement among impartial persons unconnected with the trial, whether judges, lawyers, or observant laymen; and an unreasonably insufficient time is in legal effect the same as no time at all.

And what was the hurry, what was the occasion for any such haste? There was a four-week term, yet all this transpired in the three opening days. And does such haste in such serious cases save any time? On the contrary, in the almost inevitable want of deliberate calmness in such hurried up trials, reversible error nearly always gets in, as has happened in this case, and in several others not so far in the past, which were handled in the trials with nearly but not quite so much speed as this one. The average result, therefore, in such hurried cases is delay rather than dispatch, with the attendant expense of new trials, and more months of languishing in the various jails while defendants await the new trials. Both as a matter of the saving of time in the average of final results, and in the preservation of that indispensable feature that court trials of serious cases must be a calm, dispassionate, impartial, and deliberate manifestation of the judicial power and conscience of the state, the trial judges ought to and must conform to the spirit as well as the letter of the rule laid down in the Powell case, which declares the supreme law of the land upon the fundamental question here discussed.

And it is immaterial that appointed counsel made no objection and asked for no further time. It may be that appointed counsel supposed that, since he was obliged to accept the appointment, he was obliged also to accept the trial date without objection. But, whatever was the reason for the failure of counsel to object to the inadequate time, or to request further time, the failure to object is immaterial, for, when a proceeding fails to conform to due process, the judgment is void, and may be attacked or the point raised at any time, anywhere, and in any manner. See cases cited in Carraway v. State, 170 Miss. 685, at pages 689, 700,154 So. 306, 308, 312, and see, also, Powell v. Alabama supra, and Brown v. State, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682.