Arnold v. State

• Decision Date: 29 October 1934
• Docket Number: 31392
• Citation: 157 So. 247,171 Miss. 164
• Court: Mississippi Supreme Court
• Parties: ARNOLD v. STATE

157 So. 247

171 Miss. 164

ARNOLD v. STATE

No. 31392

Supreme Court of Mississippi

October 29, 1934

Division A

1 JURY.

Drawing of special venire in capital case where regular jury box was exhausted from jury list made up by board of supervisors for succeeding year, although thirty days had not yet elapsed since making up of list as required by statute before persons on list became eligible as jurors, held mere irregularity only and not to warrant quashing of panel (Code 1930 sections 2033, 2061, 2064).

2 JURY.

Defendant in capital case not having interposed objections to manner of drawing of special venire at time venire was being drawn waived objection (Code 1930, sections 2033, 2061, 2064).

HON. R. L. CORBAN, Judge.

APPEAL from the circuit court of Franklin county HON. R. L. CORBAN, Judge.

Preston Arnold was convicted of murder, and he appeals. Affirmed.

Affirmed.

C. F. Cowart, of Meadville, and A. A. Cohn, of Brookhaven, for appellant.

The court at the regular August, 1933, term failed to draw and place in the box the name of persons from the list provided by the board of supervisors to serve at the regular January, 1934, term.

The chancery clerk and sheriff, within fifteen (15) days prior to the January term, 1934, drew the jurors for the January, 1934, term without an order from the court, and drew all the names in the jury box from the list prepared by the board of supervisors at the January, 1934, meeting to serve for the twelve (12) months beginning more than thirty days thereafter.

On the 15th day of January, 1934, being the first day of the January term of this court, the defendant was arraigned, and his case set for call on Tuesday, the 16th, at which time he requested a venire. Thereupon, the court ordered a venire of fifty (50) men to be drawn from the jury box of Franklin county. It was then made known to the court that there were no names in the jury box from which to draw the venire, and that the list prepared by the board of supervisors at its January, 1934, meeting had not been placed in the jury box. The court then ordered the circuit clerk to place in the jury box the names of those listed by the board of supervisors at its January meeting for the term beginning more than thirty (30) days after the January term of court, and from this list the venire in this case was drawn.

It is our contention that this error is not one that can be cured by section 2064 of the Code of 1930, because the manner in which this venire was had and drawn was not in compliance with section 2061.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

Everything which has been done in connection with the drawing of this special venire is regular and in order, as provided by chapter 40 of the Code of 1930, with one exception--that the jury list had not been made so much as thirty days prior to the drawing of this special venire. Appellant's argument proceeds upon the theory that these jurors, like wine, should be aged before using.

Section 2061 relates to the drawing of special venires in capital cases. I am unable to agree with the appellant that the provisions of this section are mandatory.

Harris v. State, 155 Miss. 398, 124 So. 353; Lee v. State, 138 Miss. 474, 103 So. 233.

The statute does not prevent the use of the new jury list within less than thirty days from its making where it is necessary by reason of the fact that the jury box has been otherwise exhausted.

Section 2062, Code of 1930.

No fraud has been shown on the part of anybody, actual or implied. There is no contention made that appellant was not fairly tried by an impartial jury, and it is submitted that what was done in this case was, under the circumstances, the proper thing to do, and particularly does it appear to be proper since the defendant made no objection at the time the venire was drawn, but waited until the names had been drawn and the jury summoned and had appeared in open court. If defendant objected to this procedure, it was incumbent upon him to object to the procedure at the time it was indulged in by the court.

OPINION

McGowen, J.

Preston Arnold, the appellant, was convicted of murder in the killing of John Temple, and was sentenced to serve a life term in the state penitentiary.

1. There was sharp conflict in the evidence offered by the state and by the appellant. There were eyewitnesses to the killing, but there was some conversation between the parties at its inception which was not heard by these witnesses. We deem it unnecessary to set out, in detail, the evidence. We think it was clear that it was proper to submit the case to the jury, and that the court below correctly refused a peremptory instruction. We do not think it was error to refuse the instructions requested by the appellant.

2. It is assigned as error here that the court below refused to quash the special venire from which the jury in this case was impaneled.

This case was tried at the January, 1933, term of court, fifteen days before the grand and petit juries had been drawn from the regular jury box and the box exhausted, but at its January meeting the board of supervisors had certified to the clerk a new jury list...