Atkinson v. State

• Court: Mississippi Supreme Court
• Writing for the Court: SYKES, P. J.
• Citation: Atkinson v. State, 100 So. 391, 135 Miss. 462 (Miss. 1924)
• Decision Date: 09 June 1924
• Docket Number: 23766
• Parties: ATKINSON v. STATE. [*]

100 So. 391

135 Miss. 462

ATKINSON v. STATE. ^[*]

No. 23766

Supreme Court of Mississippi

June 9, 1924

Suggestion of Error Overruled June 24, 1924.

APPEAL from circuit court of Lauderdale county, HON. C. C. MILLER Judge.

Frank Atkinson was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

Parker & Snow and Marion W. Reily, for appellant.

I. Was the grand jury properly summoned? Under the laws of Mississippi prior to 1896, the juries, including the grand juries, were, or might be, drawn from the county at large. But in chapter 84 of the Acts of 1896, the legislature undertook to revise and rewrite all that portion of the jury law which permitted the drawing of the same from the county as a whole, and in the place thereof require the selection of juries from the different supervisor's districts.

This act requires that the supervisors in making up the jury list "shall take them as nearly as they conveniently can from the several supervisor's districts in proportion to the number of qualified persons in each." So it will be seen that a difference in the number of qualified persons for jury service, might exist in the several supervisors districts, and that this difference should receive recognition at the hands of the board of supervisors in preparing the jury list.

The next feature of jury selection was recognized and provided for by the legislature in this act, by the following language: At each regular term of the circuit court, and at a special term if necessary, the jury shall draw in open court from the five small boxes enclosed in the jury box, slips containing the names of fifty jurors, to serve as grand and petit jurors for each subsequent week of the next succeeding term of court, drawing the same number of slips from each and every one of the five small boxes if practicable.

We find nothing in this last provision depending upon differences in population or the number of qualified persons for jury service in the several districts. These names are placed on the jury in proportion to the qualified persons unless convenience requires a variation from this rule. When the legislature selected the words "if practicable" it must be construed to mean such limitation as is properly found in the meaning of the language used, and not applied so as to cover a condition which might be thought to improve the law by giving to these words a different meaning.

The trial court in this instance directed that this jury be summoned in the ratio of five from one district to one from each of the other districts. And the reason given for so doing was that this method was necessary because to draw one from each district, or an equal number from each district was impracticable. And the impracticability of so doing was due to no lack of qualified persons in any district, but because there were more than five times as many voters in one district as in any of the others. Without any qualification it is perfectly manifest that the means were available from which a jury could have been drawn with an equal number from each district, and therefore such selection was practicable, and the drawing of this jury was not according to law, but in violation of law, at a time and under the conditions when this appellant was insisting, in the drawing or summoning of this jury, that the method provided by law be not ignored.

The supreme court has, from time to time, held high the warnings of law and fixed, as necessary, the requirements of the law in the organization of the grand jury. McQuillen v. State, 8 Sm. & M. 587, per Chief Justice SHARKEY; Shepherd v. State, 89 Miss. 154; Stokes & Johnson v. State, 24 Miss. 621; Shepherd v. State, 89 Miss. 147.

In presenting our motion in this case, before the grand jury was empaneled, the circuit clerk was offered as a witness and testified, that the approximate number of qualified male voters in the respective districts of the county were as follows: District 1, fifty-six hundred fifty-nine; District 2, four hundred seventy; District 3, nine hundred seventy-six; District 4, five hundred twenty-three; District 5, six hundred thirty-eight.

How are we going to find a definition of that word "practicable" which will be sufficiently elastic to authorize a court to bring the action of the trial judge within the terms of the law? If it means in proportion to the population, the law was not followed in this case. If it means, "capable of being done or accomplished with available means or resources," then the law was not attempted to be followed. In order to support the ruling of the court in this case it is necessary to give the words "if practicable" a strange and peculiar definition.

The positive requirements of the provisions of the statutes are of recognized importance and the courts in the trial of cases have no right to ignore these directions fixed by law, or by strained and unnatural constructions, seek to evade the obligations of observance of all the legal requirements. Gibson v. State, 70 Miss. 554; Jones v. State, 98 So. 150; House v. State, 98 So. 156.

II. Does the Record Show That the Defendant Was Tried by a Legal Jury as Required by Law, or Were the Twelve Men who Sat in the Jury Box Sworn to Try the Issues as the Law Requires. Section 1241, Hemingway's Code, section 1483, Code of 1906, provides a special oath which shall be administered to jurors in a capital case.

It will be seen by a close examination of the record that when each juror was called upon his voir dire examination he was sworn, the stenographer's notes of the voir dire examination of each juror being preceded by the following words: "having been duly sworn, testified as follows." But further than that the record shows there was no further oath administered, except that administered to each witness when called. The statute contemplates a specific oath rather than that administered on the voir dire examination, this court having expressed itself upon this identical proposition. Miller v. State, 84 So. 161.

And, until this further oath was administered, the twelve men accepted to try the case were not legal jurors and could not return a valid verdict in the case.

R. H. Knox, Attorney-General, for the state.

After the motion of the appellant, which was joined in by the district attorney for the state, was granted, the court ordered a new venire facias for fifty qualified persons to act as jurors, to issue as provided by law, and directed that the sheriff summon the fifty men in proportion of five men from Beat One, and one from the other beats respectively until the fifty men should have been drawn. Section 2180, Hemingway's Code, controls.

We call the court's attention especially to the words "and shall take them as nearly as they conveniently can, from the several supervisor's districts in proportion to the number of qualified persons in each, excluding all who have served on the regular panel within two years, if there be not a deficiency of jurors." See Purvis v. The State, 71 Miss. 706, 14 So. 268; Section 2177, Hemingway's Code, is also important.

We fail to find from this record that the appellant was compelled to accept any juror who failed to qualify under this section of our Statute. It is contended in appellant's brief that the special oath was not administered in this case to the jury to try this case, as provided by section 1241 Hemingway's Code. On pages 279 and 280, second volume of this record, which is the judgment of the court, we find among other things mentioned in said judgment, the following: ...