61 Miss. 577 | Miss. | 1884
delivered the opinion of the court.
The entry by the clerk of the verdict of the jury is in these words : “ Thereupon came the district attorney, who prosecutes the pleas of the State, and Robert Hunt, the defendant herein, in his own proper person, and the said defendant, being solemnly arraigned and charged on the indictment herein, pleaded not guilty as charged, thereupon came a jury of good and lawful men, to wit, Hal Yerger, etc., etc.,” naming with Mr. Yerger eleven men only— that is to say, the clerk recites that there came a jury of good and lawful men, to wit, eleven men. What is the effect of this ? Must the judgment sentence be reversed because the record affirmatively shows that the defendant was convicted by eleven men only ? We said in Phillips' Case, 57 Miss. 357; Spivey’s Case, 58 Miss. 743, and Flemming’s Case, 60 Miss. 434, that by § 1443 of Code of
It is evident that the fact not contained in this record, to wit, that there were twelve men on the jury, was jurisdictional in its character.
The defendant, on a charge for a felony, cannot consent to a trial by less than twelve men. If he does so consent, such consent is void and will be ignored in the appellate court. There can be no valid jury trial by less than twelve men and a consent to that effect by a criminal is absolutely void. Byrd v. State, 1 How. (Miss.) 163; Carpenter v. State, 4 How. (Miss.) 163; Lewis v. Jarrett, 5 How. (Miss.) 434. Such is the settled law of this court. Is the present an instance only of an omission to show that there were twelve men on the jury, or is it a case where the record affirmatively shows that there were eleven only? If it was merely an omission to show anything on the subject the cases quoted above would govern it, otherwise not.
It is to be remarked that no motion on the subject was made in the court below, and we have quoted above all that the record shows on the subject. In Larillian v. Lane, 8 Ark. 372, and in Foote v. Lawrence, 1 Stew. (Ala.) 483, it was held that the clerk made the record at least contradictory by reciting that “ a jury ” came, and then by enumerating only eleven men as composing it, since every jury ex vi termini imports that there were twelve men, and that in such case the court would assume that the clerk was right when he said that “ a jury,” to wit, twelve men, came, and wrong when he named only eleven as composing it.
Though in several of our cases it seems understood that the word “jury” necessarily imports twelve men, it is clearly decided by several cases, that the.- court must reverse when the clerk uses that
