95 So. 513 | Miss. | 1923
delivered the opinion of the court.
The appellant was convicted of murder and 'sentenced to the penitentiary for life, from which judgment she appeals.
The killing occurred on October 24, 1922, about five p. in.; the indictment was returned at three-thirty p. m. on the following day, whereupon appellant was arraigned and her trial set for nine a. m. the next day, October 26th. Motion for a continuance or postponement to a later day of the term was overruled by the court. Appellant then demanded a special venire and made a motion for a copy of the indictment and a list of the special venire summoned in the case.
The copy of the indictment and list of the special venirewere delivered to appellant’s counsel at nine-thirty a. m. October 27th, and the case being then set for trial on the following day; October 28th at nine-thirty a. m., at which time the trial proceeded; all of which was done over the objection of the appellant. One of the grounds in the motion for a new trial after conviction was the failure of the state to furnish appellant the copy of the indictment and list, of the special venire “at least one entire day” before the trial.
The question presented for our decision, which will determine the appeal, is whether or not the court forced the appellant to trial without having first furnishéd her a copy of the indictment and a list of the special venire “at least one entire day” before her trial, as required by section 1481, Code of 1906 (section 1239, Hemingway’s Code).
The exact point is whether the court complied with the demands of the statute by furnishing the defendant a copy of the indictment and the list of the venire at nine-thirty -a. xn. on October 27th, and proceeding to trial of the case at xxine-thixty a. m. on October 28th, the next day. It will be observed that twenty-four hours intervened betweexi nine-thirty a. m. of the day. of service, and nine-thirty a. m. of the day of the trial, and, so far as the appellant being-furnished the copies twenty-four hours before her trial, there is no question, but whether the statute providing
We have reached the conclusion that the statute means a day commencing at twelve o’clock midnight and ending at twelve o’clock of the next night. This is the common understanding and acception of the definition of a day, at common law and in recent judicial decisions. Therefore the appellant was denied a substantial right under.the statute, in that she was not allowed an entire day, that is from twelve at night to. twelve the next night, in which to examine and consider the indictment and the venire before proceeding to trial. See the case of Boatwright v. State, 120 Miss. 883 83 So. 311, and the authorties there cited in the appellant’s brief; also the authorities cited in the dissenting opinion and the other opinions rendered in that case. See, also, Carter v. Henry, 87 Miss. 411, 39 So. 690, 6 Ann. Cas. 715; Robertson v. State, 43 Ala. 325, 17 C. J. 1131; Nixon v. State, 2 Smedes & M. 497, 41 Am. Dec. 601.
In addition to the reasons given for the conclusion reached above, we may add that, under section 1006, Gode of 1906 (section 1373, Hemingway’s Code), and the rule announced in the Boatwright case, supra, the day of service of the process in the case at bar is not to be counted in the computation of the whole day required by the statute. Section 1481, Code of 1906; section 1239, Hemingway’s Code. So if the day on which the process is served is not to be counted, then, of course, the appellant in the case before us was not served an entire day before her trial. Furthermore, it is plain, as indicated in the Boat-wright case, supra, that fragments of two days cannot be added together so as to make an “entire day” spoken of in the statute.
In view of these conclusions the judgment of the lower court will be reversed, and the case remanded for a new trial.
Reversed and remanded.