Gwynn v. State

64 Miss. 324 | Miss. | 1886

Coopee, C. J.,

delivered .the opinion of the court.

We entertain no doubt of the power of the circuit court to require a witness who has been subpoenaed to testify before the grand jury to enter into a recognizance to appear either at a present or future term. The grand jury is a part of the court, and its proceedings are under the supervision of the ‘presiding judge. It is true that in its deliberations he may not interpose nor take part, but neither can he participate in the deliberations of a petit jury, and that he may not so do does not in the one case more than in the other restrict him in the exercise of all proper and usual control over the machinery provided by law for the aid of the jury in performing the duties devolved on it. The court has all the power belonging to a court of oyer and terminer and general jail delivery (Code of 1880, § 1493), and the judge is a conservator of the peace (code, § 2268). The power to require persons to enter into recognizances to appear before the grand jury is one which has been immemorially exercised by circuit courts, and this of itself would be a potent consideration if the existence of the power were otherwise doubtful.

But there is a fatal variance between the judgment nisi and the scire facias. The judgment nisi is for a failure to appear and testify before the grand jury as by his recognizance he was bound to do, while the scire facias recites that a judgment has been entered against him for a failure to appear to answer to the State of Mississippi on a charge preferred against him, etc. This is a total departure from the judgment nisi and necessitated the amendment of the writ. The appellant filed what he called a plea to the scire facias, but it is both in substance and form a demurrer, and it should have been passed upon by the court and not submitted to a jury, as was done, and as a demurrer it was well taken. The frequent reversals in this class of cases suggests the propriety of our remarking that' by the easy process of amending writs of scire facias so that they shall conform to the judgment nisi, the consequences which otherwise are so apt to result from the inexperience or carelessness of clerks may be readily avoided.

The judgment is reversed, and the cause remanded to be further proceeded with in the court below.