The comet. [volume] (Jackson, Miss.) 1877-1882, 1879-05-24
SUPREME COURT DECISIONS.
Reported Weekly by Jenkins
a. Little, Attorneys All law.
MONDAY, May 10, 1879.

MONDAY, Nay 10, 1879.
JAMES 2. TURBEyILnn,
$4,000 vs..
The STATE,
Error to the Circuit Court of Yazoo
county, Hon. S, S. Calhoon, Judge.
The case is stated in the opinion OF the
Court.
CHALMERS, j.,
Hold
Turbeville was city tax~collector OF
Yazoo City. Having collected from Foun-
tain BarksdNle, n taxpayer OF said city, the
full amount of taxes due by him as shown
on the assessment book or roll of said city,
he thereafter SO altered the figures showing
the value Of Fountain Barksdale's taxable
property as to make u difference OF nine
thousand dollars in value, and differences
of $119 in the amount collected by him.
By the book thus altered, he settled his own
accounts with the city. lie was indicted
for forgery under section 25S2 OF the Code,
by which it is declared that every person
shall be deemed guilty of forgery, who,
with intent to defraud, shall make any false
entry, or shall falsely alter any entry i'll any
book of accounts kept i'll the office of tho
| Auditor of Public Accounts OF
in any other public Office, by which any de
mand either against OF i'll favor
of the State, or any county or town or in
dividual, shall be or purport to be dischars-
ed, diminished or in any manner
affected
The indictment charged the accused with
altering ian entry in the book of accounts
of the assessment of persons and property,
real and personal in Yazoo City, and then
and there kept i'll the public Office of Asses
sor Of Ya2oo City.
The indictment was demurred to on the
ground that the City Assessment roll was not
"a book of accounts" aud the demurrer
being overruled, the same point was snb~
sequently made by objections to evidence.
The Court below rightly ruled that the as
sessment lists usually called ''rolls' consti
tuted ga book of accounts. Ii was prov
ed TO be in form "a book" one of tho de-
finitions of which, as given by Worcester,
is collection of paper leaves sewed OF
bound, used for any kind of writing"
That it is used by law for keeping both
the accounts of the municipality against the
Taxpayers, as well as to show the state of
accounts between the city and its collector,
we know officially, as well as by the proof
in the record, so that in every point ofview
the Court properly ruled that within the in
tendment of the statute the assessment roll
was "a book Of accounts
After tho testimony in the case had been
closed and the written instructions given,
and during the argument of counsel, to the |
jury, the Judge left the bench and stepped |
into a room Immediately adjoining and |
in the rear of the bench, and separated |
from it only by the thickness of the wall |
through which deor opened He placed |
member of the bar on the bench with it,
structons to call or notify him if needed.
He remained in thisroom, thus absent from
the bench, and distant from it, as the bill of
exception shows, five or six feet during the
greater portion of the time consumed in
in the several addresses of counsel to the
jury. II does not appear whether the door
which opened from the bench, or rostrum,
into this room (stylod the Judges retiring
room) was closed or open while the
Judge was thus absent, This conduct of
the Judge is assigned for error, bill.of
exceptions to which having been rendered
md signed after his return to the bench !
If we could consider this statement of {
he facts ia showing such absence from the
DOM on the part of the Judge as consti- {
,uted even temporary REIMBURSEMENT of
5he control of the court and the conduct of
the trial, we should uuhesitatingly reverse
the Judgment. There can he no court
without judge, and his presence as the
genius of the trial is as essential
during the argument as at any other time.
We do not mean to say that he must actual
ly listen to every word that falls from the
lips of counsel while they are addressing
the jury, for this might impose a burden
too heavy to be borne, but we do mean that
the conduct and control of the argument
within legitimate limits is confided to him
as n judicial duty, and cannot be, by him,
devolved upon another. While will not be
precluded from from changing his seat to
any portion of the room he may prefer, or
from temporarily engaging in conversation,
or reading or writing, he must remain with
in hearing of counsel, SO as to be able in
SANITY, TO assert his authority if demanded
by anything that may occur. While it will
rarely Unnecessary or p1oper for him to in
terfere with counsel, instances may arise
that will require it, and moreover, the con-
duct of the jury, spectators or officers of
lie court may be such as as to demand the I
instant interposition of his authority, In |
jlVu cdseS OF pIoSecullonH Ior mlSu6mean- |
DIS, he may give place to another by con- i,
ent, and if he does so without objections I
n advance, consent will perhaps be pre- =
umed but in prosecutions for felonies no
onsent can be given, and if given, it will q
lot be binding on the accused. {
The bill of exceptions in this case fails \
o show clearly that there was any relin- C
Iuishment by the Judge of the functions t
# his office, or any such bodily absence as h
prevented their instant assertion when de- q
handed, and we decline on this account to h
everse the Judgment. =
II is assigned for error that the District p
attorney in his closing argument INDUCED n
n appeals to the race prejudices of the col
red jurors who were in the box, for the
urpose of procuring a conviction. The d
barge is denied by him, and the record C
caves it doubtful. Certainly we cannot a
ssnme that this excellent officer SO far for II
ct the duties of his position as to be guilty Il
conduct so improper; and even if he n
id, the Judge, by his remarks in the pres {,
nee of the jury, did ali that could be done \
} prevent eny injury to the accused. %
Affirmed. q
773-Samuel Hawthorn, admir-, VS. Myer /,