Dinkins v. City of Aberdeen

Full title: DINKINS v. CITY OF ABERDEEN

Court: Supreme Court of Mississippi, In Banc

Date published: Nov 14, 1949

42 So. 2d 744 (Miss. 1949)

42 So. 2d 744

Opinion

No. 37345.

November 14, 1949.

1. Criminal procedure — introduction of original affidavit after erasure therefrom of improper memorandum.

In a prosecution for the violation of a municipal ordinance, the mayor noted in ink across the face of the affidavit charging the offense that the defendant had been fined and an appeal taken, and on the trial on appeal the court allowed the affidavit to be introduced after the notation thereon had been removed by ink eradicator: Held that there had been no mutilation and that there was no error in the introduction of the affidavit thus restored to its original condition.

2. Alteration of instruments — mutilation — erasure of markings on collateral writings.

Mutilation ordinarily imports the rendering of a document imperfect by subtracting from it some essential part, as by cutting, tearing, burning or erasure, but without totally destroying it. The erasure from a written instrument of something wholly collateral to it, and which added nothing to, or subtracted nothing from, its legal effect is neither a mutilation nor an alteration in a legal sense.

3. Criminal procedure — municipal ordinance — fines with limit of state statutes.

When the municipal ordinance making it a misdemeanor to drive a motor vehicle on the streets of the municipality while the driver is under the influence of intoxicating liquors prescribes the same penalty on conviction as that imposed under state statutes, a fine of $350 and a sentence of 30 days in jail is not excessive, the city charter as well as the state statutes allowing fines up to $500 and jail sentences up to 30 days.

Headnotes as approved by McGehee, C.J.

APPEAL from the circuit court of Monroe County; RAYMOND T. JARVIS, Judge.

G.M. Holmes, for appellant.

I find no cases in point with the questions raised in appellant's assignment of errors. I have never before heard of an officer of the court so mutilating an affidavit, nor have I found any case where an officer of the court had mutilated an affidavit by writing on it words to the effect that the defendant had been convicted and fined in the lower court. I do know that such practices are improper and are highly prejudicial to the rights of a person on trial if the jury is permitted to view such an affidavit and consider it.

Where the proof conclusively shows, as it did in this case, that the mayor had improperly mutilated, and thus made void, the affidavit, as was done in this case, I am of the opinion that the court erred in permitting, over the objection of appellant's counsel, the Mayor of the City of Aberdeen to destroy the evidence on which appellant's motion to exclude the affidavit was based; and I urge that the affidavit which the Mayor of the City of Aberdeen had so mutilated was void and that the evidence that it was void should not have been permitted by the court to have been destroyed by the mayor, and I also insist that the motion of appellant to exclude the introduction of this affidavit should have been sustained, and I also urge that appellant's instruction directing the jury to find appellant not guilty should have been given for reasons assigned above, and that the appellant should have been discharged.

Thomas F. Paine, for appellee.

It is true that the Mayor had no right to make this notation across the affidavit and that it would have been improper to have presented this affidavit to the jury with this notation written across it. But what happened in the matter was, that when this point was raised, we offered to substitute an affidavit with this notation left off of it, and upon objection being made by appellant, we then asked permission in open court, out of the hearing of the jury, to be permitted to have this notation erased from the affidavit with ink eradicator. The trial judge agreed to permit us to have the notation eradicated, provided that after this was done the jury would be unable to read what had been eradicated. And it took only a few minutes for this notation to be completely eradicated from the affidavit and upon it being presented to the court, he permitted the affidavit then to be offered in evidence.

Counsel for appellant admitted that he has no authority either approving or condemning this, but it is a matter of common sense and in this case expedient and there could be no possible objection in the action of the trial court in permitting this notation to be eradicated from the affidavit. The truth of the matter is that instead of the affidavit being mutilated the affidavit was placed back in its original form by having the notation eradicated therefrom, and no possible harm could happen to defendant or appellant from this action.

If the court had not permitted this to have been done, it would be an easy matter for anyone who had access to court files to write across affidavits in appeal cases and prevent a trial de novo in a circuit court. Any person so inclined to do so could thus prevent the administration of justice, by placing such writing across the face of affidavits.

This case had been tried and completed in the Mayor's court, and the Mayor unthoughtedly made this notation across the face of the affidavit or across one corner of the affidavit and if this constitutes a mutilation of the affidavit the action of the trial court in permitting this to be eradicated, restored the affidavit to its original form.

Montgomery, J.

Appellant was convicted in the Mayor's Court of the City of Aberdeen on a charge of unlawfully driving a motor vehicle on the streets of Aberdeen, Mississippi, while under the influence of intoxicating liquor and was fined $100. At the conclusion of the trial, appellant appealed to the circuit court, and the Mayor wrote in ink the following across the face of the affidavit: "Fined $100.00, appealed case to Circuit Court, Monroe County, Miss."

On the trial in the circuit court, the city offered the affidavit in evidence, and there was an objection on the ground that the memorandum thereon was prejudicial. The learned circuit judge, on motion, permitted the amendment of the affidavit by removing the memorandum with ink eradicator, thereby restoring the original condition of the affidavit, and admitted it as evidence. Appellant was convicted in the circuit court and sentenced to pay a fine of $350 and serve a sentence of thirty days in the county jail. The case is now before us on appeal from that judgment.

(Hn 1) Appellant assigns two grounds as error. First, it is argued that the court below erred in permitting the affidavit to be amended by removing therefrom the collateral memorandum made thereon by the mayor and then receiving it in evidence. There is no merit in this contention. There was no mutilation of the instrument here, either by placing thereon the memorandum or by the subsequent removal of it. (Hn 2) Mutilation ordinarily imports the rendering of a document imperfect by subtracting from it some essential part, as, by cutting, tearing, burning or erasure, but without totally destroying it. 44 C.J. 1500. Here, the written memorandum on the face of the instrument was wholly collateral to it. It added nothing to, and subtracted nothing from, the legal effect of the affidavit. It was without legal effect upon the affidavit. The erasure of marginal writings from an instrument is immaterial when the legal effect of the instrument is not changed thereby. 3 C.J.S., Alteration of Instruments, § 29, p. 934.

(Hn 3) Appellant contends further that the fine and sentence were excessive. We do not think so. The city ordinance provides that upon a conviction the same punishment shall be imposed as is provided by the laws of the State of Mississippi with regard to such offense against the State, and the city charter limits fines imposed by the city to $500 and imprisonment to thirty days. The fine and sentence imposed here were within the limitations of the city ordinance, the city charter, and the state statutes, and fully merited by the proof in this record.

We find no error in the record. The proof of appellant's guilt beyond every reasonable doubt is clear and abundant. The judgment of the lower court is affirmed.

Affirmed.