West v. State, 80 Miss. 710

West v. State

80 Miss. 710 | Miss. | 1902

Terral, J.,

delivered the opinion of the court.

Steven West was convicted in the circuit court of Warren county of the murder of Hinnie Eisher, and sentenced to be hanged. Erom the judgment this appeal is taken. He assigns several errors in the proceedings before the trial court:

*7131. There being no names in the jury box, the court directed the clerk to issue a special venire facias for thirty-five jurors. This writ being placed in the hands of the sheriff, he, with the aid of his deputy, and by the examination of the registration books of the county and the personal assessment roll, selected seven names from each supervisor’s district, and gave them to his bailiffs, to be summoned as jurors in the case. Whether these persons were in fact summoned at all does not appear. There is a notice in the record as if they were severally written to by mail, but that is only a subject of conjecture. The contention is, as we understand it: (1) That unless a summons was actually served upon a juror the proceeding is void; (2) the selection by the sheriff of the seven names from each supervisor’s district infected the proceeding with fatal error. It is not alleged that the sheriff or his deputy was moved by any .motive of prejudice against appellant in selecting the seven jurors from the five districts of the county. Upon oath they disclaim any bad purpose, and it is perfectly manifest that the object in making the selection was to avoid the summoning of jurors disqualified by reason of not having registered or of not having paid their taxes before February 1st. The motive of. the sheriff was a good one, and his action could not possibly do a prejudice to appellant. It was the duty of the sheriff to have thirty-five jurors before the court at the day appointed, according to the command of the writ in his hands. The method of notifying them to appear is unimportant and immaterial, and does not affect the legality of the proceedings.

2. The court, upon an examination of the jurors on voir dire, placed twelve men in the jury box, and they were accepted by the state, when the defendant was asked whether he would accept the panel or not. His counsel replied that two of the jurors then in the box on their voir dire had disqualified themselves — one by saying that he was not a registered voter, and the other by not having paid his taxes before February 1st. The court said to him: “If you challenge the two jurors for *714cause, I will sustain the challenge,” to which the defendant said nothing, “and then and there excepted.” Section 4370, code 1892, says: “A judgment in a criminal case shall not be reversed because of any error in the case in the court below unless the record shows that the error complained of was made ground of special exception in that court.” If the defendant desired to object to the jurors for the cause stated, he should have challenged them therefor. That was the proper and orderly way of making the objection, and, not having pursued the rules of law on the subject, he is not entitled to complain.

3. The objection to the instruction that the jury, being unable to fix the punishment at imprisonment for life, should return a verdict of guilty, if from the evidence, beyond all reasonable doubt, they believed him so to be, is frivolous. It is in exact conformity with the statute, which covers the whole law of the case.

Affirmed.