Hardy v. State

| Miss. | Mar 15, 1910

Smith, J.,

delivered the opinion of the court.

Appellant was convicted of embezzlement in the court below and appeals to this court.

A motion to quash the indictment was filed in the court below, and overruled; the ground of the motion being that the grand jury which found the indictment was not sworn. The minutes of the >court at which the indictment was found contain no statement that the grand jury was sworn. In Cody v. State, 3 How. (Miss.) 27; Abram v. State, 25 Miss. 589" court="Miss." date_filed="1872-07-01" href="https://app.midpage.ai/document/abram-v-state-7998356?utm_source=webapp" opinion_id="7998356">25 Miss. 589; and Foster v. State, 31 Miss. 421" court="Miss." date_filed="1872-07-01" href="https://app.midpage.ai/document/foster-v-state-7998391?utm_source=webapp" opinion_id="7998391">31 Miss. 421, it was held that the swearing of the grand jury must affirmatively appear from the-record, and in default thereof an indictment found by such grand jury was void. The holding of these decisions has long since become the settled law of this state, the only change therein made by the legislature being that such objection must be made before verdict (Hays v. State, ante 153, 50 So. 557" court="Ala. Ct. App." date_filed="1912-05-28" href="https://app.midpage.ai/document/tuskegee-land--security-co-v-birmingham-realty-co-6521395?utm_source=webapp" opinion_id="6521395">50 South. 557); and this appellant did by filing his motion to quash. In Smith v. State, 28 Miss. 728" court="Miss." date_filed="1872-07-01" href="https://app.midpage.ai/document/smith-v-state-7998374?utm_source=webapp" opinion_id="7998374">28 Miss. 728, it was also held that the swearing of the grand jury must be ascertained by an inspection of the record.

It is contended by the state that this defect in the record was waived: First, because a plea of not guilty was entered, and not withdrawn before the motion to quash was made; second, because this motion was made for the first time in the circuit court of Lincoln county, to which a change of venue had been granted from Franklin county. Neither of these grounds is tenable. Permitting a motion to qnasb. to be filed after plea of not guilty entered is within the discretion of the court. While no order was entered permitting appellant to file his motion,- no objection was made thereto; consequently the obtaining of formal permission from the court to file the motion was waived. In support of the second ground we are referred to Loper v. State, 3 How. (Miss.) 429. That ease, so far as the matter now under consideration is concerned, simply held, by implication, that a defendant who has applied for and obtained a change of venue will not be permitted to ■question the regularity of the proceeding by which he obtained .such a change of venue, and has no application here.

The judgment of the court below is reversed, the indictment quashed, and the defendant held to await the action of a legally •organized grand jury. Reversed.