Stark v. State, 97 So. 577

97 So. 577 | Miss. | 1923

Per Curiam :

Appellant, Walter Stark, Avas indicted and convicted in the circuit court of Tippah county of an attempt to manufacture intoxicating liquors, and sentenced to the penitentiary for one year, from Avhich judgment he prosecutes this appeal.

The principal ground urged for the reversal of the case is that the three talesmen, who Avere members of the jury which tried appellant, were not sworn as jurors until after the state had finished its evidence and rested. ' When the eAdclence for the state Avas concluded, the trial judge, remembering that these three jurors had not been sworn, had the clerk administer the oath to them required by the statute, to which appellant objected.

Appellant argues that such delay in administering the oath to these three jurors Avas fatal error; that these three jurors during the trial were no more than mere bystanders. On behalf of the state it is contended that, the oath having been administered to these jurors before they retired to consider their verdict, the failure to administer it before the trial began was harmless error.

Appellant relies on Miller v. State, 122 Miss. 19, 84 So. 161, while the state relies on Boroum v. State, 105 Miss. 887, 63 So. 297, 457. In the Miller case the evidence for both the state and the defendant had been closed, and the court had under consideration the instructions in the case. It was then discovered that the special oath required by section 1483, Code of 1906 (section 1241, Hemingway’s Code), to be administered bo- juries in capital cases, had uot been administered. Thereupon the court proceeded to administer the required oath, to which action of the court the defendant objected, and moved the court to enter a mistrial. This court held that the failure to administer the special oath required in capital cases was fatal error; that without it there could be no trial. The Boroum case involved the trial of a misdemeanor. It was held in the latter case that the failure to administer the oath to talesmen, required by section 2713, Code of 1906 (section 2206, Hemingway’s Code), until after the case had been closed and the jury had retired to consider their verdict, but before the consideration thereof, was harmless error.

Section 2713, Code of 1906 (section 2206, Hemingway’s Code), prescribing the oath to be administered to the regular juries, as well as talesmen, contemplates that it shall be done at the time the regular panels are organized and when the talesmen are accepted, and before any trial shall take place, and simply provides that they shall be sworn to well and tx*uly try all issues and execute all writs of inquiry submitted to them during the term, and a true verdict render according to the evidence. The form of the special oath to be administered to jurors in a capital case is that they will well and truly try the issue between the state and the prisoner, and a true verdict give according to the law and the evidence.

Judges Smith, Etheridge, and Anderson are of. opinion that there is no difference in principle between a failure to specially swear the jury in a capital case and a failure to swear it in a noncapital case until after the evidence is concluded, but before the jury retires to consider their verdict. They are of opinion that an oath administered after the evidence is closed, but before the jury shall retire to consider their verdict, carries just as much sanctity as an oath administred before any of the evidence is heard; that the required oath in no wise aids the jury in hearing, seeing, or understanding; that it has no virtue or sanctity until the jury have reached the point of considering their verdict; that the principle laid down in the Miller case is unsound and mischievous and therefore it ought to be overruled; that therefore the failure to swear the three jurors in this case was harmless, and, notwithstanding the error, they vote to affirm the case.

Judge Cook agrees with Judges Smith, Ethridge, and Anderson that, so far as the question involved is concerned, there is no difference whether the case be a capital case or a noncapital case, but, in vieAV of the fact that, in his opinion, the court on suggestion of error ’finally rested the decision of the Boroum case on the fact that the omission complained, of was not taken advantage of before verdict as required by statute, he is of the opinion that there is no conflict between the Boroum and Miller cases, and that both are sound, and therefore neither should be overruled. He holds that the Miller case is decisive of this case in favor of appellant, and therefore votes to reverse and remand the case.

Judgs Sykes and I-Iolden are of opinion that, by virtue of the difference in the special oath required to be administered to the juries in capital cases and the oath required to be administered in noncapital cases, and the difference in gravity of the two grades of crime, there is a distinction between the two classes of cases, and a, failure .to administer the special oath in a capital case is vital error, while in a noncapital case it is not ;• and they agree with Judge Cook that there is no conflict between the Boroum and the Miller cases; that both are sound, and neither of them- should be disturbed. They therefore vote to affirm.

One other question, whether there is variance between the indictments and proof, is argued on behalf of appellant, as to which all the members of the court agree there is no merit. It is not deemed of sufficient gravity or importance to the bench or the bar to call for an opinion.

The result of the varying opinions of the members of the court is that five of them vote for an affirmance of this case, ay hile one votes to reverse it.

Affirmed.