Thompson v. State

58 Miss. 62 | Miss. | 1880

Campbell, J.,

delivered the opinion of the court.

When a jury for the trial of this case was tendered to the State, the district attorney peremptorily challenged two of the twelve jurors, and, without.calling others to take their places, the remaining ten were presented to the prisoner, who demanded a .full panel before he would pass upon them. The court refused this demand, and, without filling the panel, required the prisoner to say whether he would accept the ten or not. He then peremptorily challenged four of the ten, and the panel was completed afterwards. The prisoner excepted to this action of the court, and assigns it for error.

We think the right of the prisoner was disregarded in the matter mentioned. The statute (Code 1871, sect. 2761) allowed the prisoner tour peremptory challenges. The object was to enable him to set aside four from a panel of twelve men without assigning any cause. To give him the full benefit of the statutory right, he should have been presented with a full panel, “in order the better to enable him to take his challenges.” The propriety of this is manifest. The exercise of the right to challenge might be materially influenced by a view of a full panel. When a complete panel is presented to the prisoner, he may exercise his right to challenge-unembarrassed by uncertainty as to who may be called to fill a vacancy other than that created by his challenge. His right, is to be tried by a jury from which four have been set aside-by him without cause assigned, if he so elects. He has a right to view twelve men presented to him as a jury before he can be called on to say which he will reject, or whether-he will reject any.

Hawkins lays it down that, “ before any juryman is ^brought to the box, the prisoner, by leave of the court, may have the-whole panel once called over in his hearing, that he may take-notice who do and who do not appear, in order the better to enable him to take his challenges.” 2 Hawk. P. C., chap. 43, sect. 4. Our statute entitles the accused in capital cases-to a list of the special venire summoned on his trial, in order-the better to enable him to take his challenges. In misdemeanors the accused has the right to select eight from twelve jurors offered, by rejecting four of them at his pleasure.

When the district attorney challenged two of the jury, their-places should have been supplied by two others; and when they were accepted, the jury complete should have been presented to the prisoner ; and when he had passed upon it, and a jury was completed, the district attorney should have been allowed to challenge for cause (he having exhausted his peremptory challenges) anjr of the jurors not on the jury when he declared himself content with it.

The case of Tatum v. Preston, 53 Miss. 654, is not inconsistent with the foregoing view. In it the question was whether the defendant, after challenging peremptorily one of twelve jurors who had been accepted by the plaintiff and presented to him, could, after the place of the challenged juror was filled by one called to it, challenge one of the eleven not challenged by him in the first instance ; and we held it to be correct practice to require each party, when a full panel is presented to him, to challenge all whom he desires to chailenge, and not to permit experimenting by challenging one and waiting to see who is called to his place, and then to challenge others who were in the box at first.

In capital cases, the list of the special venire summoned being in the hands of the prisoner obviates all objection to the uniform practice which prevails in this State of calling one juror at a time.

Judgment reversed and venire de novo awarded.