96 So. 740 | Miss. | 1923
delivered the opinion of the court.
This is an appeal from a conviction of assault and battery with intent to kill and murder. None of the assignments of error are well taken, only three of which require special notice. These are that the court below erred (1) in overruling the appellant’s challenge to the grand jury which returned the indictment against him when it was about to be impaneled; (2) in overruling the appellant’s motion to quash the indictment; (3) in overruling the appellants motion for a change of venue.
The grand and petit juries for the term at which the indictment was found were drawn by the sheriff and the circuit and chancery clerks, as provided by section 2696, Code of 1906 (Hemingway’s Code, section 2188), and were thereafter summoned by the sheriff and his deputies. The sheriff is the person whom the appellant is charged with having assaulted, and the contention of the appellant is that the fact disqualified him from participating in the drawing of the jury. No misconduct of any kind is charged against the sheriff in either the drawing or summoning of the jury.
The statute does not relieve the sheriff for any cause
For the same reason the motion to quash the indictment was properly overruled. The objection thereto is based on the same alleged incompetency of the grand jury complained of in the challenge to the grand jury, and under section 2704, Code of 1906 (Hemingway’s Code, section 2197), an objection to the grand jury cannot be made by a motion to quash an indictment, but only by a challenge to the array for fraud.
The motion for the change of venue was predicated on several grounds, to-wit: (1) Prejudgment of the case in the public mind; (2) that the defendant was a stranger in the county; (3) that the prosecuting witnesses were the sheriff of the county and his son, who was a deputy Sheriff; (4) that the sheriff by virtue of his office has political and personal influence with the people of the county; (5) that the entire bar of the county united in the prosecution of the defendant, so that the defendant was compelled to employ counsel living in another county.
Section 1484, Code of 1906 (Hemingway’s Code, section 1242), which provides for the granting of a change of venue, permits the granting thereof only for the first of these grounds, and assuming, for the sake of the argument, that there is some testimony indicating prejudgment of the appellant’s case, a large number of witnesses testified to the effect that the case had excited no particular interest in the county, and that there had been no prejudgment of the case, so that at most there was simply a conflict in the evidence relative thereto, which conflict was for the determination of the trial court, whose decision thereof should not be reversed, unless it is manifestly wrong, and this cannot be here said.
Affirmed.
