McVey v. State

| Miss. | Mar 15, 1918

Lead Opinion

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction for murder, followed by a sentence to life imprisonment in the state penitentiary. When the case was called for trial a special venire was demanded, whereupon the court directed that fifty names be drawn from the jury box, but on ascertaining that two of the five compartments thereof contained less than ten names each, directed the clerk, over the objection of the defendant, to issue an open venire facias commanding the sheriff to summon fifty jurors. The defendant, who was'then present in the custody of the sheriff, was thereupon returnéd to jail. An hour or two later, in the absence of the defendant, who was then in jail, his counsel again called the attention of the trial judge to the matter, and requested that the special venire be drawn from the jury box, which was shown to contain in the compartment for district No. 1, nineteen names, for district No. 2, seven names, for district No. 3, two names, district No. 4, twenty-three names, and district No. 5, seventy-four names, which request was again denied. Afterwards, on the return of the venire and before the jury was impaneled, defendant’s counsel, he himself being absent in jail, moved the court to quash the venire on the ground that it should have been drawn from the .jury box as provided by statute, which motion the court overruled. The ruling of the court upon each of these motions was objected to, and two questions are presented to us thereby: First, was the defendant tried by a legal jury? Second, should the judgment of the court below be reversed because of the absence of the defendant from the courtroom while two of the rulings of the court upon the objections raised by his counsel to the venire were made? The first question must be answered in the affirmative, and the second in the negative.

Conceding for the sake of the argument that the jury box was not exhausted within the meaning of the statute, and that the jury should have been drawn therefrom, nevertheless the court below committed no reversible error in declining so to do and directing that the jury be selected in the manner provided by section 2715, Code of 1906 (section 2208, Hemingway’s Code), “in the event that there should be no such box, or the same should be mislaid, or the names therein have been exhausted,” for the reason that “all the provisions of law in relation to the listing, drawing, summoning and impaneling juries are directory merely.” Section 2718, Code of 1906 (section 2211, Hemingway’s Code).

• The second question presented to us for decision, stated in another form, is simply this: Was the defendant present when the method by which the jurors were selected was determined? That he was then present admits of no sort of doubt, for the method determined on in his presence was thereafter pursued; the rulings made in his absence relative thereto, upon objections made by his counsel identical with the one made and ruled on in his presence, having made no change whatever therein.

We find no reversible error in the other matters complained of.

Affirmed„

Cook and Sykes, JJ., dissenting.

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Concurrence Opinion

SteveNS, J.

(specially concurring). Upon the alleged error of the court in refusing over the objection of the accused to use the jury box from which to draw the special venire, my views are fully stated in the opinion delivered by me in Simmons v. State, 109 Miss. 605" court="Miss." date_filed="1915-03-15" href="https://app.midpage.ai/document/simmons-v-state-7992121?utm_source=webapp" opinion_id="7992121">109 Miss. 605, 68 So. 913. If the .trial court erred in the method of drawing the special venire, it yet remains that the accused accepted twelve competent, fair, and impartial jurors in this case, not one of whom is challenged for cause. It was said in the Simmons Case that:

“Conceding that the list of jurors was made up altogether from residents of beat 1, we are constrained to hold that the verdict and judgment of conviction must be upheld, in the absence of a showing on the part of the appellant that he has been materially hurt, damaged, or prejudiced in any of his rights. The twelve men impaneled were admittedly qualified jurors, fair and impartial in this particular case.- Not one of them is challenged for cause. The only objection raised to the jury was by motion to quash the entire venire because of the alleged failure on the part of the board of supervisors to comply with section 2688 of the Code. Section 2718 of the Code provides that our jury laws are directory, and this section, in. the absence of a showing that appellant has in fact been injured by the overruling of the motion to quash the venire, cures any alleged error of the board of supervisors or the court below in the ‘listing, drawing, summoning, and ; g of the jury in question’ ” — citing Lewis v. State, 91 Miss. 505" court="Miss." date_filed="1907-10-15" href="https://app.midpage.ai/document/lewis-v-state-7989914?utm_source=webapp" opinion_id="7989914">91 Miss. 505, 45 So. 360; Cook v. State, 90 Miss. 137" court="Miss." date_filed="1907-03-15" href="https://app.midpage.ai/document/cook-v-state-7989796?utm_source=webapp" opinion_id="7989796">90 Miss. 137, 43 So. 618.

The case of Walford v. State, 106 Miss. 19, 63 So. 316, quoted from in the Simmons Case, is also in point. In moving to quash the venire, counsel for the defendant in the court below was partly renewing the same objection, which he interposed at the time the court refused to draw the jury from the jury box and directed the sheriff to summon a special venire. This motion to quash was initiated by the defendant’s own counsel in the absence of • the accused, and might have been renewed by counsel when the prisoner was brought into the courtroom. The ruling of the court was not altered, modified, or reversed in the absence of.'the accused. More than this, the defendant at that time had not been put in jeopardy, and when the trial did begin, the accused, without further objection, permitted the state to select from the special venire twqlve jurors and tender them to the defendant and the defendant proceeded to accept without objection twelve competent jurors, and these twelve fair and impartial men sat in judgment upon the facts and solemnly returned a verdict of guilty. Why, then, should the case be reversed? If these honest, fair, and impartial jurors, accepted by the defendant, without exhausting his peremptory challenges, have heard the case once, why remand the case in order that twelve other fair and impartial jurors may do the work over again? Not one of them, as said in the Simmons Case, “was challenged for cause or shown to have any opportunity to prejudge the cause of appellant.” If there was error, it was not material or reversible error, as it affirmatively appears that the accused was tried by an impartial jury of his peers.