BELL v. STATE.

(Supreme Court of Mississippi. January 21, 1889.)

1. HOMICIDE-ASSAULT WITH INTENT TO KILL-TRIAL-ACCUSED AS WITNESS. On a trial for assault with intent to kill it is error to compel defendant, if he wishes to testify, to do so before other witnesses.

2. SAME-EVIDENCE-THREATS.

There being evidence that the injured person made the first hostile demonstration, it was error to exclude previous uncommunicated threats by the injured person against defendant.1

Appeal from circuit court, Lee county; L. E. HOUSTON, Judge.

Bell was indicted for assault with intent to kill. On the trial the court told Bell if he desired to testify in his own behalf he must do so before other witnesses were examined. There was testimony to the effect that the day before Bell made the assault the injured party was after him (Bell) with a shotgun, and that at the time of the assault by Bell the injured party was advancing on him with one hand in his pocket, shaking the other hand at Bell. The court excluded testimony of previous uncommunicated threats. Bell was convicted and sentenced, from which he appealed.

J. L. Finley and Allen, Robins & Stribling, for appellant. T. M. Miller, Atty. Gen., for the State.

COOPER, J. The court should not have required the accused, as a condition upon which he would be permitted to testify at all, to take the stand before examining other witnesses whom he desired to introduce. One charged with a felony has the right to be present in court during the whole of the trial, and unless he voluntarily absents himself from the court the trial may not proceed in his absence. The right to be present during the examination of his other witnesses, and the right to testify in his own behalf, are both secured, and equally secured, to the accused by law, and neither may be denied or abridged by the court.

It must often be a very serious question with the accused and his counsel whether he shall be placed upon the stand as a witness, and subjected to the hazard of cross-examination, and one which cannot be a question that he is not required to decide until upon a full survey of all the case, as developed by the state, and met by witnesses on his own behalf. He may intelligently weigh the advantages and disadvantages of his situation, and, thus advised, determine how to act. Whether he shall testify or not; if so, at what stage in the progress of his defense,—are equally submitted to the free and unrestricted choice of one accused of crime, and are in the very nature of things beyond the control or direction of the presiding judge. Control as to either is coercion, and coercion is denial of freedom of action. If, in response to the suggestion of the judge, the accused had stated that he desired to testify, but could not in justice to himself take the stand until after other testimony should be delivered, what course could the court have taken? It could not have removed him from the presence of the jury while the other witnesses were being examined, for that would have been to deny him his constitutional right of being present at his trial. The only other course was for the judge either to leave the defendant free to speak as a witness when he should elect so to do, or to compel him, before the examination of other witnesses, to take the stand himself under the admonition that if he did not he should be precluded from testifying at all. A defendant placed in such condition would frequently find the lesser evil to be in retiring from the court, leaving to his

1Concerning the admissibility in evidence, on trials for homicide or homicidal assault, of threats made by the injured person, see Johnson v. State, (Miss.) ante, 95, and note; Miller v. Com., (Ky.) 10 S. W. Rep. 137, and cases cited.

counsel the duty of eliciting from his witnesses the facts of his defense. But we apprehend that no court would consider such absence a voluntary one, and, because voluntary, authorizing the trial to progress in his absence. Practically the court states to the defendant that he may not be both defendant and witness, though the law recognizes him as both, and deals with him as a composite of both, and not wholly either. As defendant the court cannot enforce the rule against him as a witness, but because he is a witness it deprives him as defendant of his right to elect when as a witness he shall testify. The only rule practicable under the law is to treat the accused as defendant, except while he is upon the stand as a witness, and it is probable that even then there may arise instances in which the court will be powerless to deal with the witness because he is defendant.

The court also erred in excluding evidence of previous but uncommunicated threats made by the injured party against the accused. There was evidence tending to prove that the injured party made the first hostile demonstration, and though the jury might have disbelieved that such was the case, yet, under such circumstances, evidence of uncommunicated threats is admissible. Johnson v. State, ante, 95.

The judgment is reversed and cause remanded.

1. INTOXICATING

O'FLINN et al. v. STATE ex rel. PAYNE.

(Supreme Court of Mississippi. January 28, 1889.)

LIQUORS-LICENSE-BOND-CONDITIONS.

Where a retail liquor dealer gave a bond conditioned for the observance of "all the provisions of the Revised Code of 1880, " he was bound to observe such Code as amended and in force at the time of the execution of the bond.

2. SAME-SALES TO MINORS.

Where a minor goes into a saloon, and purchases liquor from a person standing behind the bar and transacting business, although such person is not the dealer himself or an authorized clerk, a condition in the bond of the dealer against the sale of liquors to minors is violated; it not being shown that the person selling the liquor was a mere interloper, and Code Miss. 1880, § 1115, as amended by act Feb. 23, 1886, making the sale to a minor an offense, whether the dealer knew that he was a minor or not.

Appeal from circuit court, Clay county; L. E. HOUSTON, Judge.

This is a suit on the retail liquor dealers' bond of T. O'Flinn, for selling liquor to a minor. The suit was brought by the state; on the information of R. H. Payne, the father of the minor, under Code Miss. 1880, § 1104. There was judgment against O'Flinn and sureties for the penalty of the bond, from which they appealed.

Barry & Beckett and Fox & Roane, for appellants. Beall & Pope, for appellee.

COOPER, J. Section 1115 of the Code of 1880 was amended by the act of February 23, 1886, by striking from that section the word "knowingly," so that by the Code as amended it is an offense, for one having license to retail, to sell intoxicating liquor to a minor, whether the seller does or does not know that the buyer is a minor. The condition of the bond sued on is, inter alia, to "observe and keep all the provisions of the Revised Code of 1880; and this means the Code as it had been amended and was in force at the time of the execution of the bond. At the instance of the state the court instructed the jury that the plaintiff was entitled to a verdict if from the evidence the jury believed that O'Flinn, the principal in the bond, was interested in the liquor sold to the minor. It is unnecessary in this case to decide whether, under all circumstances, the rule announced is correct. It is suflicient to say that on the uncontroverted facts of this case the plaintiff was entitled to a verdict,

and that the court might have given a peremptory instruction to the jury so to find.

O'Flinn was a licensed retail dealer, engaged in carrying on his business as such in the house in which he was licensed to deal. The bar was open for the transaction of business, and Payne, a youth under 18 years of age, went into the room, and bought intoxicating liquor from a person standing behind the bar, and transacting the business. The defendants, to meet the case thus made by the plaintiff, introduced O'Flinn, the dealer, and his son, and showed by them that at the time of the sale O'Flinn had no other clerk in his employment, and, as he says, no other person was then authorized by him to sell liquor; and, further, proved that neither O'Flinn nor his son sold the liquor. Whether it be true or not that the mere ownership of the whisky sold was sufficient to show a breach of the bond, a breach was prima facie shown by the facts disclosed by the plaintiff, and the case so made was not rebutted by anything shown by the defendant.

The business of retailing intoxicating liquors is considered by the legislature as one highly dangerous to society, and, though the business is licensed, it is under restrictions, limitations, and penalties which are calculated to minimize the evil. Among other salutary requirements is one by which the dealer is placed under bond conditioned in effect that he will not violate any of the provisions of the law in reference to retailing, and will not suffer or permit other things to be done. By the condition of the bond he must "keep a quiet, orderly, and peaceable house;" he must not "retail or otherwise dispose of vinous or spirituous liquors to any Indian, ininor, or intoxicated person;" he must not "suffer or permit any riotous or disorderly conduct, or any drunkenness, or any unlawful gaming, in or about the house or on the premises thereunto belonging;" and must "in all things faithfully observe and keep all the provisions of this act." A licensed dealer is thus made, as it were, the guardian of the law as to the premises on which his business is transacted. Failing to act is in many respects as much a breach of the bond as unlawful action. We are not prepared to say that if an intruder were to slip on the premises, and sell liquor to a minor without the knowledge of the keeper, it would be a breach of the bond. But if the dealer leaves his premises in the hands of a servant, leaving the doors open as an invitation to customers, or if he places other persons in charge, with apparent right to sell, but restricts them by private instructions, and the servant or other person does or permits an act which if done by the dealer would be a breach of the bond, it is as much a breach as though done by him. The law cannot permit him to shield himself by abandoning control of the business that is still conducted in his name, and under his license, to one not authorized to sell by him. The suggestion that some interloper might have stepped into the bar and sold the liquor to the minor is entirely too unsubstantial and improbable. If such was the fact, at least some evidence of it should have been introduced. In the absence of anything tending remotely to prove such fact, we are not disposed to consider what its effect would be if proved.

The judgment is affirmed.

MCCROY v. TONEY.

(Supreme Court of Mississippi. February 4, 1889.)

FRAUDS, STATUTE OF-ORAL LEASE OF LAND.

In Mississippi, a lease of land for a term not exceeding one year not being required to be in writing, (Code, § 1292,) an oral lease, made December 15, 1887, for the year 1888, is valid, notwithstanding it is a contract which is not to be performed within a year.

Appeal from circuit court, Coahoma county; J. H. WYNN, Judge.

On 15th December, 1887, H. A. Toney orally leased certain land to Charles W. McCroy for the year 1888. Toney refused to deliver possession, whereupon McCroy sued for damages for breach of contract. Toney demurred to the declaration, alleging invalidity of the contract under the statute of frauds. Demurrer was sustained, and judgment against McCroy, from which he appeals.

Calhoon & Green, for appellant. Cutrer & Cutrer, for appellee.

CAMPBELL, J. The single question presented for decision by this record is, was the lease of the land by words, without writing, on the 15th day of December, 1887, for the year 1888, invalid? After careful consideration of all the learning on the subject furnished by the text-books and English and American decisions accessible to us, and touching this question, we answer it in the negative. The reasoning by which we reach this conclusion is this: Without the statute of frauds such leases would be valid, and they are expressly excepted from it. It is as if our statute was, in the language of that of Georgia, "contracts creating the relation of landlord and tenant, for any time not exceeding one year, may be by parol," and from that language the supreme court of Georgia thought it indisputable that a contract for the renting of land made on the 25th of December, 1875, for the year 1876, was valid. Steininger v. Williams, 63 Ga. 475. The object in excepting from its provisions contracts for the making any lease (of land) for not more than one year is to let them stand as at common law, whereby they were valid. The exception may be supposed to have been made with reference to the custom of the country in which leases for a year are generally made without writing. As the statute applies only to leases for a longer term than one year, and thereby excludes leases for a year, or less, it is not to be assumed that the very next clause of the statute (the infra annum clause) was intended to apply to and invalidate what had been carefully excepted by the preceding clause, for the purpose of leaving it, as at common law, unaffected by the statute.

Our view is sustained by the courts of England, New York, Colorado, Iowa, Indiana, Georgia, Michigan, and Tennessee, and maintains the prevailing custom of the people of this state. Reed, St. Frauds, §§ 196, 815, and notes, where cases are cited. It is opposed by the courts of Alabama, Illinois, Kentucky, Massachusetts, and perhaps other states, but upon grounds unsatisfactory to us, and in most instances, as it appears to us, without much consideration of the question. The statute of frauds sprung from the notion that certain matters should be evidenced by writing, lest perjury should be committed to maintain claims on them. In England, it was thought a lease for not more than three years from the making thereof, with a prescribed rent, was not of sufficient moment to incite to perjury, and such leases were excepted from the statute, (29 Car. II.,) and, being excepted, were held not to be embraced by the infra annum clause of the fourth section of that statute. With us it was considered that a lease for one year is not of sufficient importance to cause perjury, and therefore it is not required to be evidenced by writing. Section 1188 of the Code, corresponding to section 2 of 29 Car. II., excepts a term of not more than one year from the requirement of a writing

to convey land, and section 1292, which corresponds to the fourth section of the statute, (29 Car. II.,) also excepts from its provisions the making any lease of land for a term not longer than one year, while the English statute does not, in its fourth section, except the leases excepted by its second section; and yet it is held there that such leases as are excepted by the second section, although not excepted expressly by the fourth section, are by virtue of the exception in section 2 not embraced in section 4. Surely, as our statutes (sections 1188 and 1292) both exclude leases for a term not longer than one year, they cannot be held to be affected by section 1292.

Before the statute (29 Car. II.) a term might be created by parol to commence in future. By that act writing was made necessary, except as to leases for not more than three years from the making thereof, etc. By our statute writing is necessary, except as to leases for not more than one year, but the clause of the English statute, "from the making thereof," is omitted. Hence the conclusion that it has reference to the duration of the term, and not to the date of its commencement. The term created by parol must not be for more than a year, but that may commence when the contracting parties agree it shall begin. Ita lex scripta est, and it conforms to the practice of the people of this state. It is said if a lease may be made on Christmas day for the next year, without writing, it may be made to commence a year or five or ten years hence. If true, what of it? If two persons, able and willing, actually should contract, the one to let and the other to enjoy and pay rent for premises for the year 1900, where is the harm of upholding the contract, though not in writing? The improbability of any such contracts being made suggests the improbability of their inclusion in any legislative scheme to regulate the transactions of society.

Reversed, demurrer overruled, and cause remanded.

MISSISSIPPI & T. R. Co. v. GILL.

(Supreme Court of Mississippi. February 4, 1889.)

1. CARRIERS-OF PASSENGERS-CARRIAGE BEYOND STATION-DAMAGES. Plaintiff and wife were prevented from leaving a train at the rear platform, when they attempted it, by the throng getting on, and, being carried by, the conductor refused to stop and let them off, but promised to send them back from the next station on the next train. He failed to make the arrangement, and plaintiff paid fare. Held, that plaintiff could not recover punitive damages, but only compensation. 2. TRIAL-RECALLING WITNESS.

The rule that a witness cannot be recalled after having been once on the stand does not apply where he is recalled for different testimony, the occasion for which has arisen since his former examination.

Appeal from circuit court, Tate county; W. M. ROGERS, Judge.

H. 1. Gill and wife were passengers on a regular train of the Mississippi & Tennessee Railroad, and attempted to get off from the rear end of the car in which they were, (the conductor being, as usual, at the front end,) but were prevented because of the anxiety of a great number crowding to get on the train. When the time for starting arrived, the train pulled out with Gill and wife still on board. After the train had gone some distance, Gill demanded of the conductor that it should be stopped, and allow himself and wife to get off, which the conductor refused, but promised to send them back on a train which would come along in about an hour. Nothing more was said at the time, and when the train of which the conductor spoke came along Gill and wife returned on it, paying 60 cents for return passage, the conductor having failed to provide for their return as promised. Gill brought suit for damages, and on the trial the court refused to instruct the jury that this was not a case for punitive damages, as requested by the railroad company. Verdict and