Adams v. State, 39146

• Citation: 220 Miss. 812,72 So.2d 211
• Decision Date: 03 May 1954
• Docket Number: No. 39146,39146
• Parties: ADAMS v. STATE.
• Court: United States State Supreme Court of Mississippi

Page 211

72 So.2d 211

220 Miss. 812

ADAMS v. STATE.

No. 39146.

Supreme Court of Mississippi.

May 3, 1954.

D. Gary Sutherland, Hattiesburg, for appellant.

J. P. Coleman, Atty. Gen., by Wm. E. Cresswell, Asst. Atty. Gen, for appellee.

HALL, Justice.

Appellant was convicted in the county court for the unlawful sale of intoxicating liquor, and his conviction was affirmed on appeal to the circuit court from which action he appeals here. He argues two grounds for reversal.

1. The first contention is that the county court erred in overruling his motion to quash the petit jury. It avers that the trial judge directed the drawing of sixty names from the jury box and out of the sixty so drawn and summoned the petit juries were impaneled for the trial of cases for the week in which appellant was convicted. The motion to quash is founded upon Section 1615, Code of 1942, which provides that 'for each week of the term of the county court not less than twenty nor more than forty names, in the discretion of the court shall be drawn from the jury box of the county', etc. Appellant contends that the drawing of sixty names from the box was such a departure from the statute that the county court's action was void and the whole panel should have been quashed. Section 1798, Code of 1942, provides that 'All the provisions of law in relation to the listing, drawing, summoning and impaneling juries are directory merely; and a jury listed, drawn, summoned or impaneled, though in an informal or irregular manner, shall be deemed a legal jury after it shall have been impaneled and sworn'.

The record shows that out of the sixty names drawn from the box only sixteen or seventeen qualified for jury service for the week, and the court thereupon directed that thirty more names be drawn from the jury box and summoned to appear on the second day of court, and out of the grand total of ninety names only twenty-nine were qualified and impaneled for jury service. On the trial of this case later in the week twenty-eight names of the total of twenty-nine were exhausted before a jury of twelve was selected for the trial. In overruling the motion to quash, the county judge stated that while the statute fixes a maximum of forty names to be drawn from the jury box, he considered the statute directory and not mandatory in that respect; that it was his desire to obtain a jury that would be fair to both sides, and that he considered it more equitable to have jurors selected by chance than to have people called for jury service who were sitting around the courtroom. He further stated that he wouldn't have been surprised at the filing of a motion to quash the panel if some of them had been picked up from the courtroom, but that when a sufficient number is drawn from the box for the trial he was unable to see how anyone had been prejudiced.

In the early case of Head v. State, 44 Miss. 731, 750, this Court, in discussing our laws governing the selection of juries, said 'The primary object is to secure a fair, unbiased jury.' The legislative intent to the same effect may be gleaned from an amendment to our jury laws with respect to circuit courts made in 1938. Under Section 2058, Code of 1930, it was provided that after the drawing of the grand jury in the circuit court, the remaining jurors in attendance shall be impaneled into two petit juries for the first week of court if there be a sufficient number left, and, if not, the juries may be completed from the bystanders, or the court may direct a sufficient number for that purpose to be drawn and summoned. This statute was amended by Section 301, Laws of 1938, so as to eliminate the provision for completing the petit juries from the bystanders and so as to require that the jurors be drawn from the jury box until there are a sufficient number to complete at least two full panels of the petit jury at the beginning of the week. Cf. Moffett v. State, Miss., 71 So.2d 303. The right to a trial by an impartial jury is guaranteed in all criminal prosecutions by the Sixth Amendment to the Federal Constitution and by Section 26 of the Mississippi Constitution of 1890. It is the foundation of our form of government and wholly foreign to totalitarianism.

In the case of Rhodman v. State, 153 Miss. 15, 120 So. 201, this Court condemned in no uncertain terms the action of a county judge in hand-picking a list of names from the poll books of the county for jury service in his court even though he may have been prompted by the best of motives. Such was not the situation in the case at bar. Here the county judge, based upon his experience of the previous month of his court as shown by the record, determined, and as it later developed determined correctly, that he could not obtain...