Bell v. State

• Citation: 118 Miss. 140,79 So. 85
• Court: United States State Supreme Court of Mississippi
• Decision Date: 08 July 1918
• Parties: BELL v. STATE

79 So. 85

118 Miss. 140

BELL v. STATE

Supreme Court of Mississippi

July 8, 1918

March 1918

APPEAL from the circuit court of Bolivar county, HON. W. A. ALCORN Judge.

Carter Bell Jr., was convicted of murder and appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

Owens &amp Roberts, for appellant.

Section 455 of Hemingway's Code provides for the holding of circuit court in the second district of Bolivar county on the first Monday in April, twenty-four days, and the second Monday in November, thirty-six days, at which, during the first half of each term, a grand jury shall be impaneled, and during the first days of the November term only civil business shall be transacted and the last twelve days only criminal business shall be transacted. Section 456 of Hemingway's Code provides that no grand jury shall be drawn or impaneled in any of the counties composing the eleventh District for the second term of court for the calendar year except when ordered by the judge of the district.

We submit that under section 456 of Hemingway's Code no grand jury could have been impaneled in the second Judicial district of Bolivar county for the second term unless an order was previously made by the court ordering it to be drawn. No such order was made and therefore the assembling of the grand jury was unauthorized and illegal. If the order had been made to assemble the grand jury the term at which the grand jury could have acted was only the first half of the November term. Should we grant, for the sake of argument that the circuit court made the order for the grand jury to be drawn for the November term, still, under section 455 "during the first half of each term a grand jury shall be impaneled" limits the time in which the grand jury could be impaneled and act for the first half of the term. Here the grand jury had been convened, finished its labors, had been discharged and during the second half of the term of court they were reassembled and returned this indictment. The court had just as much right to reconvene the grand jury a month after it adjourned as it did during the last half of the term of court at which time no grand jury was authorized to be assembled. If this is true, then the indictment was returned by an illegal body and is of no more force than if it had been drafted by the district attorney and filed into court without any action on the part of any grand jury and we submit for the two reasons above assigned that the court erred in sustaining the demurrer.

Whitfield & Whitfield, for appellant.

This case lies within a very narrow compass. We insist in the first place that sections 3, 4, 5, and 6, and 7 especially section 3 of the Act of March 27, 1914, were not replaced by the Act of April 7, 1916, page 419 of the laws.

A careful reading and comparison of the two statutes will make it plain that the purpose of the legislature enacting chapter 264, pages 324 and 325, of the Laws of 1914, was to provide for the time of holding terms of the circuit court in the eleventh circuit district, and also to provide certain other provisions in sections, 3, 4, 5, 6 and 7, especially to provide as it did provide by section 3, as follows: Section 3, p. 456 of Hemingway's Code: "No grand jury shall be drawn or impaneled in any of the above counties for the second term of court for the calendar year except when ordered by the judge of the district."

This being the provision of the Act of 1914, the Act of April 7, 1916, was passed to amend the Act of 1914, and we confidently submit that as stated in the title of the amending act, the only purpose whatever of that amending act was, as recited in the caption, "to amend the Act of 1914, so as to change the time of holding courts in the eleventh circuit court district." Then follow the changes desired to be made as to the time of holding courts; and this clause is added at the last part of the section, and one act, which is the only section in the act amended. The last part of section 1 says: "During the first half of each term the grand jury shall be impaneled; during the first twelve days of the April term only civil business shall be transacted, and during the last twelve days only criminal business shall be transacted; during the first twenty-four days of the November term only civil business shall be transacted, and during the last twelve days only criminal business shall be transacted."

It is perfectly manifest that sections 2, 3, 4, 5, 6, and 7 were not in any way attached or referred to by the amending act. Now, section 3 of the Act of 1914, is in the following words, and it is this action which engages our attention; 456 Hemingway's Code, section 3: "No grand jury shall be drawn or impaneled in any of the above counties for the second term of the court for the calendar year except when ordered by the judge of the district."

Take that in connection with the last clause above referred to of section 1 saying, "during the first half of each term a grand jury shall be impaneled; during the first twelve days of the April term only civil business shall be transacted; and during the last twelve days only criminal business shall be transacted; during the first twenty-four days of the November term only civil business shall be transacted; during the last twelve days only criminal business shall be transacted." We take these two sections, section 3 and the clauses above quoted from the Act of 1916, and we submit that the plain purpose of the legislature was that no grand jury should be impaneled during the second half of any term and that only during the first half of each of those terms should any criminal business be transacted at all; the purpose being, that the indictments should all be found in the first half of the term, and the charges on which they were found should be tried only in the second half.

I submit that the purpose of the legislature, which must control in the construction of these two statutes, was that no grand jury should be drawn or impaneled during the second week of any of these courts in these counties. The law in section 3 of the Act of 1914, so expressly provides.

The effort of counsel and the learned assistant attorney-general is to escape the force of this section, which of course is fatal to their contention by arguing that said section 3, and indeed all of the other sections, 4, 5, 6, and 7, of the Act of 1914 were repealed by implication by the Act of 1916.

There are some very familiar principles about the amending statutes and repealing statutes which we shall very briefly advert to as determining whether this section 3 was repealed or intended to be repealed by the Act of 1916.

In the first place, let it be noted that this indictment was filed December 10, 1917, in the last half of that term in the second district of Bolivar county. The court had met on the 12th day of November, 1917, the court sat for thirty-six days, and it is obvious from the date, from the filing of the indictment December 10, that it was not filed in the first half, but in the last half of the said thirty-six days.

In 36 Cyc., 1071, the familiar doctrine is stated, "that the repeal of statutes by implication is not favored by the court. The presumption is always against the intention to repeal where express terms are not used. To justify the presumption of an intention to repeal one statute by another, either the two statutes must be irreconcilable or the intent to effect a repeal must be otherwise clearly expressed."

At page 1108, ib., it is said: "Closely allied to the doctrine of equitable construction of statutes and in pursuance of the general object of enforcing the intention of the legislature, is the rule that the spirit or reason of the law will prevail over its letter. Especially is this rule applicable where the literal meaning is absurd or if given effect, would work injustice or where the provision was inserted through inadvertence. Words may accordingly be rejected and others substituted, even though the effect is to make portions of the statute entirely inoperative."

At page 1103, ib., it is said: "in the consideration of conflicting provisions in a statute, the great object to be kept in view is to ascertain the legislative intent, and all particular rules for the construction of such provisions must be regarded as subservient to this end."

At page 1132, ib., it is said: "and where one part of a statute is susceptible of two constructions and the language of another part is clear and definite and is consistent with one of such constructions and opposite to the other, that the construction must be adopted which will render all clauses harmonious."

Page 1102 ib.: "By the construction of a statute is meant the process of ascertaining its true meaning and application. For this purpose, resort may be had, not only to the language and arrangement of the statute, but also to the intention of the legislature, the object to be secured and to such extrinsic matters as the circumstances attending its passage, the sense in which it was understood by contemporaries and its relation to other laws."

And at page 1074, it was said: "Between the two acts there must be plain unavoidable and irreconcilable repugnancy, and even then the old law is repealed by implication only pro tanto to the extent of the repugnancy. If both acts can by any reasonable construction be construed together, both will be sustained."

I call the court's special attention to this quotation. There is no irreconcilable conflict between the Act of 1914, section 3, and that Act of 1916. Both can stand together. The Act of 1914, expressly forbids the drawing or impaneling of a grand jury for the second term of court in any of these counties except when...