Hill v. State, 42 So. 380

42 So. 380 | Miss. | 1906

Calhoon, J.,

delivered the opinion of the court.

The court below refused to consider the motion to quash the indictment solely on the ground that the objection to the constitution of the grand jury should have been made before the g’rand jurors were sworn and impaneled. Sec. 2375, Code of 1892, making the impaneling of the. grand jury conclusive evidence of its competency and qualifications, has been often considered by this court, and has been held applicable even to a defendant who was not advised that any accusation against him was being considered by that body. Cain v. State, 86 Miss., 505 (38 South. Rep., 227); Posey v. State, 86 Miss., 141 (38 South. Rep., 324); Head v. State, 44 Miss., 731; Durrah v. State, 44 Miss., 789. We adhere to these cases.

However, the objection to the grand jury presented by the motion to quash in this case is based on a right claimed under the federal constitution, and it has been held by the supreme court of the United States that the question whether a right arising under the constitution or laws of the United States is sufficiently pleaded or brought to the notice of a state court is itself a federal question. Neal v. Delaware, 103 U. S., 370 (26 L. ed., 567); Mitchell v. Clark, 110 U. S., 633 (4 Sup. Ct., 170; 28 L. ed., 279; Boyd v. Nebraska, 143 U. S., 135 (12 Sup. Ct., 375; 36 L. ed., 103). It' has also been held by that court that, when a defendant has had no opportunity to challenge the grand jury which found the indictment against him, objection to its constitution may be taken either by plea in abatement or motion to quash the indictment before pleading in bars United States v. Gale, 109 U. S., 65 (3 Sup. Ct., 1; 27 L. ed., 857); Carter v. Texas, 177 U. S., 442 (20 Sup. Ct., 687; 44 L. ed., 839). Whatever application we may give to the statute in cases not involving a federal question reviewable by the supreme court of the United States, .we are bound by the above rulings of that tribunal. Since the motion to quash clearly presented a federal question, we must hold in this case that it was error to refuse to consider the motion to quash on the ground that it was presented after the grand jury was impaneled.

The minutes of the court, as certified to us in the transcript, show that the defendant was arraigned on December 8, 1905, and pleaded not guilty. The motion to quash the indictment was not filed until December 13, 1905. This clearly appears, both from the indorsement of its filing made by the clerk and by the date of the affidavit accompanying the motion to quash. It nowhere appears that the plea of not guilty, previously entered, was withdrawn. It is true the motion to quash, as copied into the transcript, contains the indorsement: “Filed and overruled on.plea of not guilty entered when called upon by; the court to plead to the indictment.” The indorsement, of filing is not dated, but the order overruling the motion recites that it was made on December 13th. It is hardly necessary to say that this recital that the motion to quash was heard and overruled before the entry of the plea of not guilty must yield to the positive recital of the minutes. There is also a recital in the bill of exceptions that the motion to quash was filed before the plea of not guilty was entered, but the motion itself exhibited in the bill of exceptions bears date of December .13, 1905, and thus negatives this recital. If it did not, there would still be a clear conflict between the minutes of the court and the bill of exceptions. In such cases, it is well settled that the minutes will control. 3 Cyc., 153.

But the record shows that, when the indictment was returned, defendant was in jail, and that, on the day he was arraigned and pleaded not guilty, on account of his inability, through poverty, to employ counsel, attorneys were appointed by the court to represent him. It does not appear whether the plea of not guilty was entered before counsel were appointed or not. If we were satisfied from the record that the plea of not guilty was entered on the advice of counsel, or after opportunity to consult with them, we would not hesitate to hold that the objections to the indictment were waived by the plea of not guilty. Under the peculiar circumstances of this case, as it seems probable that the arraignment was had and the plea of not guilty was entered ignorantly and before receiving legal advice, we are unwilling to hold that the defendant has been cut off from his right to object to the constitution of the grand jury. We think it more consonant with justice to reverse and remand, in order that, if the plea of not guilty was, in fact, inadvertently or ignorantly entered, it may be withdrawn, and the motion to quash may be heard on its merits. We intimate no views as to the sufficiency of the grounds set out in the motion, or .the sufficiency of the evidence to sustain it, since the Court below has not passed upon these questions.

As to the objection to the constitution of the petit jury, it is sufficient to say that it was presented verbally by motion jto quash the panel, and the sole ground of the motion relates to the making up of the jury lists and jury box by the board of supervisors. It was shown, however, that before the case was tried the jury box had been exhausted, and the entire petit jury was composed of talesmen selected by the sheriff and his deputies. The evidence as to the manner in which the petit jury was selected by the sheriff was, therefore, not responsive to the motion, was therefore immaterial, and the motion was properly denied.

Reversed and remanded.