Barnes v. State

| Miss. | Oct 15, 1882

Chalmers, J.,

delivered the opinion of the court.

Both the juries for the week being engaged in their consultation rooms in the consideration of cases submitted to them when appellant’s case was called for trial, the court below em-panelled a third jury, using for that purpose three members of the regular panels who had been temporarily excused or •challenged, and filling up the new jury with talesmen summoned from the by-standers. When arraigned before the jury thus constituted, the defendant challenged the array, on the ground hat the court had no legal power to empanel a third jury, and that he had the right to demand a trial before one of the regular juries for the week. His objection being overruled, he was forced to proceed to a trial which resulted in his conviction.

Our statutes contemplate and provide for the formation of two juries only for each week of the term of a circuit court; but there is no express prohibition of a third, and nothing which can be construed as expressly limiting the number to two. All our laws on the subject of the organization of juries are declared to be directory and not mandatory. Code 1880, sects. 1686, 1693, 1672.

It has been held from the earliest time that where no statutory pi-ovision prevented it, the course pursued in this case was proper. It is said that if there be no member of the regular panel present, the court cannot of its motion organize a jury, save in the special states of case provided for by the statute; but that so long as there is a single member of the regular venire in attendance, he may be utilized as the basis for the formation of a new jury, and that the power to do this will-be not defeated by challenging or excusing such juror; but that the court, by his presence having acquired jurisdiction to organize the jury, may proceed to exercise the power, though such juror form no part of it. 1 Chitty’s Cr. Law, 518 ; Bac. Abr., tit. “ Jury,” C. & D. ; Williams v. The Commonwealth, 91 Penn. St. 493; Rogers v. The State, 33 Ind. 543" court="Ind." date_filed="1870-07-01" href="https://app.midpage.ai/document/rogers-v-state-7038364?utm_source=webapp" opinion_id="7038364">33 Ind. 543; Bradley v. The State, 45 Ind. 67" court="Ind." date_filed="1873-11-15" href="https://app.midpage.ai/document/bradley-v-bradley-7039876?utm_source=webapp" opinion_id="7039876">45 Ind. 67; Rondeau v. New Orleans, 15 La. 160" court="La." date_filed="1840-03-15" href="https://app.midpage.ai/document/rondeau-v-new-orleans-improvement--banking-co-7160178?utm_source=webapp" opinion_id="7160178">15 La. 160; Fuller v. The State, 1 Blackf. 63" court="Ind." date_filed="1820-07-22" href="https://app.midpage.ai/document/fuller-v-state-7029377?utm_source=webapp" opinion_id="7029377">1 Blackf. 63; Emerick v. Sloan, 18 Iowa, 139" court="Iowa" date_filed="1864-12-23" href="https://app.midpage.ai/document/emerick-v-sloan-7093194?utm_source=webapp" opinion_id="7093194">18 Iowa, 139.

No better reason seems to be given for the difference in the power of the court caused by the presence or absence of a member of the regular panel, than such as-may be derived from the use of the tales in the old common-law writ of tales de circumstantibus. The sheriff being ordered to summon tales homines, it is said that there must already be one or more men in attendance, and that those to be summoned must be “ such as ” those already present or “ so many as ” may be-requisite to complete the panel.

It would seem more consonant with reason to hold, that as the trial by jury is older than any statute governing it, and was a principle or evolution of the common law, the power of a court to invoke the aid of a jury in ascertaining a question of fact was inherent, and could, in the absence of any express or implied statutory inhibition, be exercised whenever the exigencies of the situation demanded it; and, therefore, that it will not depend upon the fact of the absence or presence of one or more members of the regular venire.

The question, however, is not important in this instance, since the presence of the three regular jurors, according to all the authorities, gave the power in this case.

The instructions given, taken as a whole, fairly presented the law of the case, and we cannot say that the verdict was-unsupported b}f the evidence.

Affirmed.