Hayes v. State, 47 So. 522

47 So. 522 | Miss. | 1908

Whitfield, C. J.,

delivered the opinion of the court.

The appeal in this case was dismissed as to all the defendants except Jonas Mixon.

The facts in this case are as follows i On the first Monday of March, 1908, the 2d day of March, the court was duly convened and the grand jury duly impaneled and’continued in regular daily session till March 17th, when they returned into court a report purporting to be a final report and asking for their discharge. Whereupon the court verbally from the bench discharged them, and thereupon they drew their pay and dispersed. Afterwards several serious crimes took place in that judicial district of the county, and on verbal order of the court the jury was notified to reassemble and instructed to investigate these alleged crimes. After this reassembling, this indictment was returned and filed, and motion made to quash, after the overruling of which the defendants were convicted, and from that conviction prosecute this appeal. The precise question is: Can the judge, after discharging the grand jury which had been impaneled for the term, reassemble them during the term when the public interest requires it ? '

Under our law the grand jury is impaneled for the full term. Under Code 1906, § 2706, the court may adjourn the grand jury to a subsequent day of the term. Every order and judgment of the court is in the bosom of the court during the term, and subject to such change as necessity may require. One of the most essential things in the administration of the criminal law is celerity in the trial of persons charged with crime. The constitution itself guarantees a speedy trial. In a case where crimes have been committed after the discharge of the grand jury, is the court without power to recall the grand jury, during the term, and have these crimes investigated? We think: not. All the power conferred by section 2706 is merely declaratory of what the common law was. Code 1906, § 2718, declares that the jury laws are merely directory; and this section does have application to this sort of case. The true view in our judgment is that the court has, as it had at common law, the essential and inherent power to recall the grand jury during the term, and, if an order had been entered on the minutes discharging that body previously, to set aside such order at any time during the term when their recall is necessary to the ends of justice. No narrow technical view of the power of the court in a matter of this sort ought to be indulged by the court. The grand jury, when reassembled, was the same grand jury identically that had been discharged. Learned counsel for appellants say that, “if a judge should be held to have the power to assemble a defunct grand jury, then he would have equal right to impanel a new grand jury,” etc. This statement involves two fallacies: Eirst, the grand jury during the term cannot in any proper legal sense be considered “defunct,” though discharged. It is subject to recall by the court, if the ends of justice shall so require, at any time during the term; and there is, in the second place, a vast distinction between impaneling a. new and wholly different grand jury and reassembling identically the same grand jury. It must be carefully kept, in mind that the solitary objection here is nakedly that, the grand jury, when reassembled (though the identical body in all .respects which had been discharged, though also it was not urged that any member of it was disqualified, nor that the safeguards of the citizen had been in any way disregarded in their original selection), was an illegally constituted body, because only the-court had discharged them before the end of the term. The-court did not choose the grand jury. It was not a new grand jury. It was the identical panel that had been discharged. We-have examined carefully all the authorities which have been cited on both sides, and we will refer briefly to a few authorities which support the view we hold to be the correct one.

We premise by saying that it is true, as stated by learned counsel for the appellant, that some of the authorities cited' by the learned attorney general are from states which have statutes providing for the reassembling of the grand jury after a discharge; but this is not true of all the authorities he has cited. In 20 Ency. of Law & Procedure, 1234, it is said: “By statute in some jurisdictions, when the grand jury is dismissed before the final adjournment of court, they may be summoned to reassemble at the same term if necessary. Indeed, this power has been held to be inherent in courts of original jurisdiction in criminal matters.” And the case of the State v. Reid, 20 Iowa 413, is cited to this last proposition, and squarely so holds» Indeed, all statutes of this sort are simply declaratory of .what the common law was, and such would be the law where the common law prevails without such statutes.

In 17 Am. & Eng. Ency. of Law (2d ed.) p. 1289, it is said: “Where a grand jury, having finished its business, has been discharged before the end of the term, the court may at any time during the term revoke and set aside its order discharging the gránd jurors and reassemble them for the purpose of finding indictments, especially where an offense has been committed subsequently to the discharge of the grand jury.” We approve this as a necessarily sound statement of the law, and it is expressly so decided in Newman v. State, 43 Tex. 528, independently of the particular statute therein referred to. That statute provided the mode of selecting a grand jury, and the court, on an objection to the mode in which the particular grand jury had been selected, observed, as counsel for appellants say, that they knew of no authority for issuing a venire to enable the sheriff to select a new grand jury after that for the term had been discharged. That was all that was decided on that precise, point. But the court explicitly held on the general proposition the law to be as stated in the quotation above from the Am. & Eng. Ency. of Law, independently of any statute in the state of Texas.

And the same doctrine is held in Wilson v. State, 32 Tex. 114. The syllabus in that case correctly states the point held as follows: “A grand jury, after serving about two weeks, was discharged by order of the court. At a subsequent day of the same term of the court, the same persons who composed the grand jury were reassembled in court, and the court, by order, set. aside its former order discharging the grand jury, and directed them to proceed to the discharge of their duties as originally charged. The indictment in this case was for murder committed in the interim between the discharge of the grand jury and its reorganization, and was found by the grand jury after being so reorganized. Held, that there was no error in the proceedings, and that the indictment was found by a lawful grand jury.” In Thompson & Merriam on Juries, § 503, it is said: “The statutes of a few states provide that, when the grand jury is dismissed before the court adjourns, they may be summoned again on any special occasion at such time as the court directs. But it is not clear that this may not be done without the aid of such a statute” —citing Reg. v. Holloway, 9 Car. &. P. 43, Wilson v. State, 32 Tex. 112, and Newman v. State, 43 Tex. 525, and State v. Reid, 20 Iowa 413. In section 497 the same authors say: “At common law there were two occasions upon which a new grand jury might be assembled where the original body had been discharged. First, if, before-the end of the sessions, some new felony or misdemeanor were committed, and the offender taken and brought into custody, or if some former offender not yet indicted were brought in. Second, to inquire into the concealments of the former grand jury, namely, their failure to indict according to their oath. Some-courts have considered that this common-law power, by simple direction to the sheriff, to summon a second jury after the discharge of the first, yet remains, notwithstanding the statutes prescribing the various formalities for the selection and drawing of jurors. This- conclusion can be reached only by regarding-the statutes regulating the selection and drawing of jurors as so purely directory that they may be disregarded. If they may be disregarded in the summoning of the second jury, so may they be in the summoning of the original panel, from which it would follow that the selection of every panel of grand jurors would be relegated to the discretion of the sheriff as at common law. This cannot be the law. When an emergency arises requiring the presence of a grand jury after the regular body has been discharged in the absence of statutory authority to summon a new panel, the court should set aside the order o-f discharge and reassemble the previous grand jury."

- It will be observed that one of the very objections here urged that a grand jury can only be selected in the mode prescribed in the statute, is recognized, but the objection is said to be completely met if the court shall pursue the proper course, which course is declared to be in the last clause o-f the- section to set aside the order of discharge and reassemble the previous grand jury.

The last authority to which we shall refer, and which decides the matter squarely on common-law principles and independently of any statute, is the case of State v. Reid, 20 Iowa, commencing at page 422: “But one question remains, and that is the point made in the motion in arrest, base:! upon the manner of impaneling the grand jury. It seems that at the commencement of the February term the grand jurors were called, and some being absent, their places were filled by the sheriff as provided by section 4609 of the Revision. On the 22d of February, this jury submitted its final report and was discharged. On the Yth of March, the term-still continuing, the court ordered the clerk to issue a venire commanding the sheriff to summon the grand jury impaneled for the term to meet on the 13th. The grand jury, before discharged and thus convoked did meet and found this indictment, and were discharged on the 20th. Defendant was arrested on the 6th, was in jail on the 13th, and pleaded to the indictment on the 22d of March.

“The objection is that the court had no power to thus constitute a grand jury; that, after their discharge, they could not again be convoked for the term, and, if so, that it was irregular and improper to allow the talesmen to serve with the regular jurors, their duties ceasing entirely with their first discharge.

“The law is that persons selected to supply a deficiency in the requisite number of grand jurors “serve only during the term at which they are summoned.” Section 4610. This implies that they are to serve, like regular jurors, during the term; but, unlike those of the regular panel, their duties cease with the term. It then seems to us, if any of these jurors could be reconvened, they all could, and, indeed, to have omitted any one in the venire would have been irregular. By such a course the court does not select or create a new body or call men into the box of its own choosing, nor does it remove, reform, or change the members thereof; but calls together the very body constituting the grand inquest for the term.

“Had it the power, then, to recall this jury to consider and pass upon offenses committed immediately after their discharge and before the adjournment? It seems to us the power exists. The grand jury is a component part of the judicial machinery. It is summoned for the term, and the regular jurors served for a year. The policy of the law is that persons charged with crime shall have speedy as well as fair and impartial trials. The court possesses the power to call a grand jury together at a special term. Section 2658. It is a court of general original jurisdiction in criminal, as well as civil matters. Section 2663; Const. art. 5, § 6. To hold that it may not when the public exigency demands it, resummon the grand jury for the term after they have disposed of the business before them, and at the time demanding their cognizance, would strip it, as it seems to us, of a portion of its inherent power, a power essential to the administration of justice, a power as clearly deducible from those expressed and undenied, as any other which can be conceived.”

We regard this as a very accurate statement of the true view of the inherent power of the circuit court, a court of general original jurisdiction as to the point involved.

Wherefore the judgment is affirmed.

Fletcher, J., took no part in the decision of this case.