McCoy v. State

57 So. 622 | Miss. | 1911

McLain, C.

(after stating the facts as above).

This motion to quash the indictment is based upon the idea that there was no legal grand jury that found and returned the indictment. From the record in this cause, it is evident that the grand jury was duly and legally' organized with eighteen men. After they re- . tired to their room to consider of their business, and before the finding of this indictment, four of these were excused by the foreman, thereby reducing their number to fourteen members present at the time this case was considered and indictment found and returned into open court.

It is contended that “under authority of the court, as'announced in the case of Posey v. State, 86 Miss. 141, 38 South. 324, the opinion being delivered by Judge Truly, it was held that less than fifteen men did not constitute a legal grand jury; therefore it must follow, there being only fourteen men on the grand jury when the indictment was returned, that the indictment was void,” etc. We do not think that the facts in this case are applicable to the above announcement of the court. This quotation from the opinion of Judge Truly we fully indorse; but we are clearly of the opinion that the facts of this case are quite different from the facts involved in that case. After this grand jury retired to consider of its business, the foreman had no power to discharge finally any member of the grand jury from the panel after it was duly organized by the court. That power alone is in the hands of the court. The court can, for good and sufficient reason, discharge a member from the grand jury after it has been duly impaneled -and retired for business, making it a matter of record; and he may, if he sees proper, substitute, or rather appoint, another in his place. This the court should certainly do, if the discharged members reduce the panel below fifteen. • ...

This grand jury was legally organized with eighteen members. Our law provides that the grand jury shall be organized with not less than fifteen members, and this grand jury was legally organized with eighteen members ; and the fact that the foreman, for good and sufficient reasons, we take it, excused four members of the same, thereby reducing its numbers to fourteen, did not prevent the grand jury from proceeding with business. At the time this bill was found, there were fourteen members present of the constituted grand jury of eighteen. This was sufficient for the grand jury to transact business. Indeed, twelve would have been a sufficient number. Whatever the number of the organized grand jury, twelve jurors, by' the unwritten rule, and largely by statutes, are an adequate quorum for business. Bishop’s New Criminal Procedure, section 854. But there are states in which statutes variously provide otherwise. But “in England and all of our states, to render a finding valid, twelve of the grand jurors must consent; nor need more than twelve, even though this body should consist of the full number of twenty.”- Bishop’s' NewCrim. Proc., section 854.

The record in this case shows that at least twelve of the grand jury, when passing upon the question whether a bill should be returned against appellant, voted in the. affirmative. At least twelve of the grand jury,were present when the bill was returned. We think the indictment was found and returned by a legal grand-jury. This grand jury was legally constituted, and was a legal grand jury when considering this cáse, and was a legal grand jury when it returned the bill, and we think the court properly overruled the motion to quash. “The judicial records of this country furnish mortifying testimony that many culprits have gone free, unwhipped of justice, because of technical exceptions taken to the grand jury who preferred the indictment.” J. W. Head v. State, 44 Miss. 749. “For remedy for this sore grievance” the legislature has embodied into our statute section 2704, Code 1906. We cite a few of the many authorities throwing -light in a more or less degree upon this subject: Code 1906, section 2704; Posey v. State, 86 Miss. 142-145, 38 South. 324; Cain v. State, 86 Miss. 505, 38 South. 227; Logan v. State, 50 Miss. 277; Dixon v. State, 74 Miss. 282, 20 South. 839; Head v. State, 44 Miss. 749; Durrah v. State, 44 Miss, 789; Lee v. State, 45 Miss. 116; Nichols v. State, 46 Miss. 286; Chase v. State, 46 Miss. 697.

We think the case should be affirmed.

Affirmed.

Pee Curiam.

The above opinion is adopted as the opinion of the court and for the reasons therein indicated the judgment is affirmed.