Boroum v. State

• Decision Date: 03 November 1913
• Docket Number: 16,988
• Citation: 63 So. 297,105 Miss. 887
• Court: Mississippi Supreme Court
• Parties: STANTON BOROUM v. STATE

63 So. 297

105 Miss. 887

STANTON BOROUM v. STATE

No. 16,988

Supreme Court of Mississippi

November 3, 1913

APPEAL from the circuit court of Lafayette county, HON. H. K. MAHON Judge.

Stanton Boroum was convicted of unlawful retailing and appeals.

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

Case affirmed and remanded.

Slough & Temple, for appellant.

The seven jurors selected from the bystanders should have been sworn before passing upon the guilt or innocence of defendant and this error was not cured by the court calling them back and swearing them before verdict was rendered. Section 2713 of the Mississippi Code of 1906, says that petit jurors shall be sworn in the prescribed form given therein. If the seven jurors had been sworn at all before considering the verdict the sufficiency of their oaths could have been waived by appellant, however, we think his action did not and could not waive this duty of the court. The courts have been careful in protecting the rights of defendant. In the case of McCann v. State, 9 S. & M. 465, the judgment of the lower court was reversed because the bailiffs were not sworn for some time after taking charge of the jury and in the case at bar the record does not show that the jury was under bailiffs at all, even though the statute as amended by chapter 214 of the Laws of 1912 make the third offense a felony. Can the court say that the defendant's rights were not prejudiced by having a jury pass upon his guilt or innocence before they were sworn?

It was error for the court to overrule defendant's motion to exclude the testimony and direct a verdict for the defendant because the allegations in the bill of indictment were not proven, viz.:

First that an unlawful sale was made on the --day of July, 1912 when the proof for the state by the witness Roberts only showed that defendant acted as his agent in buying whiskey for him. Appellant was indicted and convicted for selling whiskey, two different laws with different penalties sections 1746 and 1771 of the Code of Mississippi of 1906 as amended by chapter 115 of the Laws of 1908 and chapter 214 of the Laws of 1912. The appellant had a right to know the nature and cause of the accusation against him. There was no proof to sustain the allegation in the indictment, the said offense being the second violation of the Laws of 1912, chapter 214, of the state of Mississippi. And for this variance between the proof and the allegation in the indictment, the defendant should be discharged. Tyler v. State, 69 Miss. 395.

This allegation is prejudicial to defendant especially when the indictment is carried to the jury room by the jury. We think this allegation after made becomes material and the pleader should be bound by it. We respectfully represent that the appellant has not had a fair and impartial trial and should be discharged.

Frank Johnston, assistant attorney-general, for appellee.

There were seven jurors placed in the panel as tales-jurors. They were all sworn on their voir dire, but it seemed that these seven jurors were not sworn regularly as jurors until the close of the case. At the close of the case, the jury returned to their room, but before they had taken their seats, it was ascertained that these seven jurors had not been sworn regularly as jurors in the case and the jury was brought into court and the regular oath administered to the seven jurors in the open court. It was shown to the court by evidence that was undisputed that the jury had, up to that time, had no conference or consultation whatever in regard to the case. They had not even talked one to the other about it, and moreover, they had not taken their seats in the jury room before they were brought back into court and the oath administered to these seven jurors.

The Mississippi statute is silent as to the time when the oath shall be administered to the petty jurors. Section 2713 directs that an oath shall be administered and gives the form of the oath but does not either direct or prescribe the time in which it shall be given.

In Hewitt v. Cobb, 40 Miss. 61, the court stated that the rule was that the record should show with certainty that the members of the jury have been sworn. That is universally conceded to be the rule, but the precise question presented in this case is, when this oath may be administered.

I find the rule of practice announced in the text of the Encyclopedia on Pleading and Practice to be as follows: That when the statute is silent as to the time when the jurors are to be sworn, it is held to be within the discretion of the trial court to determine the practice in this respect. When the accused has been allowed a full and fair opportunity to interpose his peremptory challenges to all the proposed jurors, he is foreclosed as to the further exercise of this right by the administration of the oath to the juror at any time after he has been examined and accepted. 12 Ency. Pl. & Pr., 520.

This seems to be the rule of practice announced by the New York court in the case of People v. Carpenter, 102 N.Y. 238. As for the reason of this rule, I respectfully submit to the court that it is apparent and upon sound principles of criminal procedure or of civil procedure that the oath to the jurors in this case was administered in ample time. Up to the time that the jury begin to deliberate on the case, they are simply listeners. They simply hear the testimony and observe the witnesses and the progress of the trial. They are called upon to decide nothing, nor are they required to confer during the progress of the evidence in regard to any issue in the case. Moreover, it would be improper for them to undertake to have any conferences or consultations until the close of all the testimony and they have returned to their jury room for a conference in regard to their verdict. The action of the jury was to take place when they began their deliberations and consultations on the case, and this oath was administered to all of these seven jurors before there was any consultation or conference or decision whatever in regard to the case.

I have not been able to find a decision by this court on the precise question, but respectfully submit that this is the sounder and better rule of practice. I desire especially to make the observation to the court that the action of the court in this case was evidently carefully guarded so as not to prejudice in any manner, and it did not prejudice in any manner, the defense of this appellant. Therefore, it is simply a mode of procedure and does not become a fatal point in the case as presented by this record. Upon the whole case, therefore, I respectfully submit to the court that the judgment of the lower court should be affirmed.

OPINION

REED, J.

Stanton Boroum was convicted on a charge of unlawful selling of liquor in August, 1912. It is alleged in the indictment that the offense is "the second violation of the Laws of 1912, chapter 214." He was fined $ 200 and sentenced to sixty days in jail. The evidence in the case is sufficient to support a conviction for unlawful selling.

Upon the trial seven tales jurors were added to the panel. They were sworn on their voir dire, but were not sworn regularly as jurors until the case was closed and the jury had retired for consideration thereof. It appears that just after the jury had retired the clerk stated to the court that the seven jurors had not been sworn to try ...