Logan v. State

53 Miss. 431 | Miss. | 1876

Simrall, C. J.,

delivered the.opinion of the court.

The objection to the proceedings in the Circuit Court, most urgently presented, is the refusal to quash the special venire facias. The motion assigns as reason, “ because the writ has not been executed according to law and the order of the court.” The sheriff made return to the effect that he had summoned thirty-two of the sixty persons named in the writ, and as to the others, that they “ were not found in (his) my county.” The precise objection developed in the argument of counsel is that the sheriff culpably failed to do his duty in not summoning more than thirty-two out of the sixty persons, and that the accused was prejudiced by a compulsion to select his jury out of so small a number, when his right extended to the whole body named in the writ.

The direction of the law is, that the provisions of the Code, and all other laws of the State not otherwise providing, having relation to the “ mode of selecting, drawing, summoning and empanelling all juries, are hereby declared to be directory merely, and such juries, selected, drawn, summoned or empanelled, though in an informal or irregular mode, shall be deemed legal after they have been empanelled and sworn,” &c. Code 1871, § 2843. Large discretion is confided to the court in superintending the selection of a jury, nor will its rulings be interfered with, unless there has been a gross and injurious exercise of discretion. Head's Case, 44 Miss. 731, 750; Gilliam v. Brown, 43 Miss. 641.

The question then arises, Is there any rule of law which required the court to quash the venire? The return of a sheriff is prima fade true. The doctrine of the common law is, that it is conclusively so in the particular case. It may be amended by the officer, if informal or incorrect, if the application so to do is made in due time. There has been for a long time, and is still, a provision in our statutes correcting the rigor of the common law. “ The officer . . . shall not be permitted to question the truth of his return, but either of the parties to the action may in the same action show the return to be untrue.” Code, § 707. The section applies primarily to civil, but the reason is urgent that the same privilege should be allowed in criminal, prosecutions.

The motion to quash in this case was not accompanied by any evidence in its support. The accused did not offer to prove the return of the sheriff to be untrue, and in the absence of a suggestion, and proof that it was false, the court must have acted on the assumption that it was true. The probability is that not so many as twenty-eight persons out of sixty, whose names were drawn from the jury-box, were dead, removed, or absent from the county, and it might have been easy to show that they were not summoned because they were not diligently sought for by the officer. We think it was incumbent, however, on the accused to have made the proof; and the court was not obliged by any rule of law to go. outside of the return, and base its ruling on possibilities or probabilities.

Whilst the object of including so many names in the special venire was to give full opportunity to the defendant to select an impartial jury, it would hardly ever occur that all would be found. It would be exceedingly difficult to say when the failure to summon would be reason for quashing. The trouble is, when is the point reached that the court will interpose thus peremptorily? We do not say that the power does not exist. It does; and ought to be exercised in proper cases.

Enough does not appear, in this record, to show an abuse of judicial power and discretion to the injury of the accused. No difficulty was encountered in the selection of the jury; at least no complaint of that sort is made in the bill of exceptions ; no effort was made to show that the officer had not in good faith obeyed the writ.

The only question that can be contested on the evidence is whether Logan, the accused, was provoked to take the life of the deceased, Young, by finding him in the act of carnal intercourse with his wife. The attention of the jury was specially directed to that inquiry by an instruction given for the defendant. They were told, in substance, that if Logan found Young in the act of adultery with his wife, and under the impulse of the moment took his life, such killing could not be regarded as murder, &c. The jury in their verdict responded to that inquiry, that the shooting was not done in the circumstances recited in the instruction. The testimony on that subject is the voluntary statement made by Logan before the justice of the peace, who made the preliminary investigation put in evidence by the State, to the effect that he heard the voice of his wife. The language is : “ Heard her talking at the gate. ... I went on up to the gate ; they [that is, Young and his wife] were doing adultery at the gate inside the fence; he [Young] jumped up and run. ... I threw a brick at him, and while he was running shot at him,” &c.

Witnesses for the State testified that it was a starlight night. One witness, shortly before the shooting, saw Logan, sitting at the root of a tree inside the enclosure, with a pile of something in front of him like brick-bats. He was dressed in white clothing, white pants and a brown linen coat. Another witness says, that he was standing on a bridge thirty or forty yards distant from the gate, where Logan’s wife and Young were talking; she was on the inside and he on the outside, and that no carnal intimacy took place.

There was also testimony proving that, on account of infidelity imputed by the husband to the wife, they had once separated. It is abundantly proved that Logan was exasperated at Young because of his intimacy with his wife. It was abundantly proved that illicit intercourse had continued for some time. The question of whether the killing was provoked by a surprise of the parties in the act, or whether it was the result of a “ premeditated design,” was fairly and fully presented to the jury by the instructions.

In reviewing the judgment of the inferior court, we can look no further than to see whether their verdict is supported by competent and sufficient evidence. The concurrence of the circuit judge (who heard the evidence) in the propriety of the verdict is a fact to be considered by this court.

Judgment affirmed.