114 So. 392 | Miss. | 1927
The statute (Hemingway's Code 1927, section 469) provides that a regular term of the circuit court of Covington county shall be convened and held on the first Monday of January and July of each year. The regular January, 1927, term of the circuit court was convened and held according to law, and, at the conclusion of this term, an order was entered on the minutes of the court finally adjourning the term until court in course. On the 6th day of April, 1927, the circuit judge of the district in which Covington county is located issued and delivered to the circuit clerk of the county the following order:
"It is further ordered that the grand jury impaneled at the regular January, 1927, term of the circuit court of said county and state be summoned to reconvene Monday, the 2d day of May, 1927, at nine o'clock a.m., at the county courthouse in Collins, Miss., for the transaction of all such business as may properly come before the grand jury.
"Given under my hand and official signature this the 6th day of April, 1927.
"W.L. CRANFORD, Circuit Judge."
This order was published in the Collins Commercial, a newspaper published weekly in Collins, Covington county, Miss., in the issues dated April 8th, 15th, 22d, *614 and 29th. Under date of April 14, 1927, the circuit judge wrote to the circuit clerk of said county the following letter:
"April 14, 1927.
"Hon. W.W. Bynum, Circuit Clerk, Collins, Miss. — Dear Sir: At the time prescribed by law, you, with the other county officers necessary, will please draw petit juries for one week special May, 1927, term of circuit court Covington county, Miss.
"As it will not be necessary to draw a grand jury for this special term, it will only be necessary to draw two petit juries or thirty names to serve one week.
"Yours truly,
"W.L. CRANFORD, Circuit Judge."
Neither the circuit judge nor the circuit clerk gave the sheriff of the county any notice of the order calling a term of the court, but the sheriff saw the order published in the newspaper, and he received from the circuit clerk an order to summon the grand jurors who had been impaneled and who served at the regular January, 1927, term to appear on the first Monday in May, 1927, "then and there to serve as grand jurors for the first week of the special term of circuit court of said county," which order or summons he duly executed.
When the court convened on the first Monday of May, 1927, no grand jury was impaneled or sworn, but the grand jury that had been impaneled and sworn at the regular January term reassembled in pursuance of the summons above quoted, and the court entered upon the minutes of the court the following convening order:
"State of Mississippi, Covington County.
"Be it remembered that a special term of the circuit court of Covington county, state of Mississippi, was begun and held according to law at the courthouse in the town of Collins, said county and state, on the first Monday in May, A.D. 1927, being the second day of said month, the time announced by the judge in the call for the said special term, and the place fixed by law for holding *615 said court, with the following named officers present, to-wit," etc.
This convening order remained in this form until after the indictment, trial, conviction, and sentence of the appellant, and until the last day of the term when the circuit judge struck therefrom the words "special term," and substituted therefor the word "reconvening," thereby causing the order to read:
"Be it remembered that a reconvening of the circuit court of Covington county, state of Mississippi, was begun and held according to law," etc.
When this term of court had been convened, counsel for the appellant filed a motion to quash the grand jury, and this motion was overruled. After the grand jury had returned the indictment against appellant charging him with murder, counsel filed a motion to quash the indictment, on the ground, among others, that no legal grand jury had been drawn, impaneled, and sworn, and this motion was likewise overruled.
On this appeal there are many assignments of error, but it will be necessary to consider only those which challenge the legality and authority of the grand jury which returned the indictment against the appellant.
When the judge adjourned the regular January, 1927, term of the Covington county court, it was adjourned until court in course. The order convening the term of court at which appellant was indicted and convicted was designated a special term of court for the transaction of all such business as may properly come before the circuit court. The order was dated more than twenty days prior to the time named for the convening of the term, and more than two weeks' notice of the time of holding the court was given by publication in a newspaper, and we are of the opinion that the term of court convened in pursuance of this order was a special term, the authority for the calling of which is found in section 988, Code of 1906 (section 744, Hemingway's 1927 Code), which provides, in part, as follows: *616
"When the business of a circuit or chancery court may require, the judge or chancellor, in term-time or in vacation, may order a special term to be held, and the order shall be entered on the minutes, or, if made in vacation, on the minutes of the special term. A special term shall not be held in a shorter time than twenty days from the date of the order; and the clerk of the court shall give two weeks' notice of the time of holding the same in some newspaper published in the county."
If, however, the order calling the term was intended to be based upon chapter 130, Laws of 1926, which provides for the convening of a session of the circuit court for the transaction of certain classes of criminal business, it was none the less a special term of the court. Section 264 of the Constitution of 1890 requires that a grand jury be drawn at each term of court, and this includes both special and regular terms, and, since the grand jury which found and returned the indictment against the appellant was not drawn and impaneled at this special term, the indictment was void. The judgment of the court below will therefore be reversed, and the indictment quashed, but the appellant will be held to await the action of the grand jury.
Reversed, and appellant held to await the action of the grand jury.
Reversed.