Quick v. State

96 So. 737 | Miss. | 1923

Holden, J.,

delivered the opinion of the court.

The appellants, Quick and Moore, were convicted of the offense of keeping and maintaining a gaming house in the city of Meridian.

The appellants present and urge several errors for reversal, the main ones being that the proof in the case was not sufficient to sustain the verdict of the jury, and that the court erred in quashing the jury panel and the jury box on motion of the district attorney.

We have carefully reviewed the testimony in the case, and the instructions given and refused by the court, and it is our judgment the proof is sufficient to sustain the charge, and that there is ho reversible error in the rulings of the court.

On the point made that the court erred in quashing the regular venire of fifty men, and quashing the jury box, on motion of the district attorney, we are of the opinion the action of the court in this regard was not error.

It appears from the record that when the criminal term of the circuit court was convened a regular venire of fifty men had been summoned and were present, from which the grand and petty juries were to have been selected. At this juncture the district attorney moved the court to quash the venire and the jury box. The reasons assigned on the motion were that the jury box from which the panel had been drawn was illegal, in that the board of supervisors in filling the box and' not followed the statutes on the subject and were guilty of numerous gross and flagrant irregularities, constituting legal fraud therein.

By leave of the court the board of supervisors filed answers denying the allegations of the motion. The state introduced the circuit clerk, whose testimony on the motion disclosed gross irregularities on the part of the board in selecting the names to go in the jury box. The supervisors offered testimony denying that they were guilty of actual fraud, but were acting in good faith. They did not, however, dispute the facts testified to by the clerk as to the flagrant irregularities, but admitted the facts testified to as being true.

We shall here state some of the irregularities practiced by the board in filling the jury box. From beat 5, where there were four hundred and sixty-five male qualified electors, one hundred and seven were placed in the box for the year 1923, and out of that one hundred and seven, seventy-nine had served either during thé year 1921 or 1922. In beat 4 there were three hundred and seventy-five qualified electors, and out of this number one hundred and forty-' nine were put in the box, and out of that one -hundred and forty-nine men ninety-two had served during the two previous years. In beat 2, one hundred out of two hundred ¿nd seventy-eight qualified male electors were placed in the box for 1923, and out of this one hundred names, nintysix had served in the two previous years. These irregularities were in violation of the statute with reference to the selection of jurors and filling the jury box.

It appears also that the jury box contained nine hundred and fifteen names, whereas the statute (section 2181, Hemingway’s Code; section 2689, Code of 1906) fixes the number of names to be placed in a jury box between the limits of two hundred and eight hundred; the trial court not having ordered a greater number than eight hundred to be placed on the list.

The record also discloses a gross violation Of section -2180, Hemingway’s Code (section 2688, Code of 1906), in that the supervisors did not select persons from the several supervisors’ districts in proportion to the number of qualified electors in each.

Upon this evidence heard by the court it was ordered that the panel and the box be quashed because of the gross irregularities amounting to fraud in law.

While it is true this court has held the jury laws are merely directory and that the venire will not be quashed for mere irregularities, yet where the irregularities are so gross and flagrant as to result in legal fraud the judge is within his province and discretion to quash the panel and the jury box in such cases, and his action will not be disturbed.

In the case of Head v. State, 44 Miss. 731, in discussing the authority of the circuit court in the selection of juries, it was said:

“It is the duty of the court to superintend the selection of the jury, in order that it may be composed of fit person^; large discretion must be confided to the court in the performance of this duty; nor will the action of the circuit court in this behalf be the subject of review here, unless some violation of law is involved, or a gross and injurious exercise of discretion is shown. The primary objects is to insure a fair, unbiased jury. Brown v. Gilliam, Ex’r, 43 Miss. 641. The objection to the special venire is not well taken.” ,

In Cook v. State, 90 Miss. 137, 43 So. 618, this court said:

“In order to warrant the court in quashing a jury box, it is not enough to show that it would be possible for names to be substituted for the list prepared by the board of supervisors; but the testimony must in fact show that a fraud has been committed, or show such flagrant violation of the jury laws as that the acts proven would constitute a fraud in law.”

The action of the trial judge in quashing the jury box and the venire drawn was largely a matter within his judicial discretion after hearing the facts showing the gross irregularities practiced by the supervisors in making-up the jury box. And there is ample authority holding that, since the court secured a fair and impartial jury for the trial of the defendant by summoning other jurors as provided by the statutes, the defendant cannot complain of the conviction because, after all, he received a fair and impartial trial. Simmons v. State, 109 Miss. 605, 68, So. 913; Tolbert v. State, 71 Miss. 191, 14 So. 462, 42 Am. St. Rep. 454; Purvis v. State, 71 Miss. 706, 14 So. 268; Posey v. State, 86 Miss. 141, 38 So. 324, 4 Ann. Cas. 221.

The judgment of the lower court is affirmed.

Affirmed.