70 So. 563 | Miss. | 1915
delivered the opinion of the court.
Appellant was indicted for murder, convicted by the jury, and sentenced to be hanged by the circuit court of the second district of Carroll county. In accordance with the practice of this court in cases wherein the death penalty is imposed, each member of the court has read the entire record of the evidence taken in the trial court and the brief of counsel for appellant.
"We have reached the conclusion that no error of law was committed by the trial court, but, inasmuch as it is so earnestly insisted that the record discloses appellant was tried by an unsworn jury, we have decided to discuss this assignment of error.
The argument is based on the recital of facts contained in two orders entered upon the minutes of the trial court. Omitting that part of the court’s orders not pertinent to thé points made in this court, we quote as follows from the order entered May 19th, viz.:
“This day this cause came on for hearing, and the district attorney, who prosecutes for the state in this behalf, being in open court, and the defendant, Nathan McFarland, being in open court in his own proper person and represented by counsel, and being rearraigned, and having had read to him the bill of indictment filed herein against him for the murder, enters his plea of not guilty thereto, and for his trial puts himself upon the country, and the district attorney doth alike, for the is
Again, we quote from the order entered May 20th, as follows:
“This day this cause came' on to be heard, thereupon came the district attorney, who prosecutes for the state in this behalf, and the defendant, in his own proper person and represented by counsel, and both announcing ready for trial, and the defendant being arraigned according to law and entering a plea of not guilty . as charged in the indictment, thereupon came a jury good and lawful men, to wit, E. M. Hovis, J. L. Adams, T. N. Merriweather, Jr., T. E. Bell, A. B. Ruscoe, J. T. Buchanan, J. F. Bole, S. T. Carpenter, J. M. Grant, J. C. Day, N. A. Delap, W. W. Wilson, who after hearing all the evidence and argument of counsel pro and con, and receiving the instructions of the court, retired in charge of .their proper bailiffs to consider of their verdict, and, after due deliberation, returned into open court the following verdict, to wit: ‘We, the jury, find the defendant guilty as charged.’ ” •
• It will be noted that the order of May 19th names eleven jurors and recites that they were sworn.. It will, be observed that the order of May 20th omits, to say that the jurors named therein were sworn, and also adds another
The rigor of .the common law caused humane judges, far in advance of the times, to scan the records of criminal trials with jealous regard for the lives of convicted criminals, but in our times the penalty for the violation of the laws bears some relation to the nature of the offense, and therefore, the legislature has Swept away many of the obsolete' rules of the common law. This court, in Hays v. State, 99 Miss. 153, 50 So. 557, has, in our opinion, settled the question raised on this appeal.
The second order made in this case by the trial court expressly recites the names of the twelve jurors who tried appellant, but .is silent as to whether or not the twelve were sworn, and this court, in the Hays Case, has said that we must presume that the jury was sworn, unless it affirmatively appears that it was not sworn.
Affirmed.