Cook v. State

• Decision Date: 29 April 1907
• Docket Number: 12,550
• Citation: 90 Miss. 137,43 So. 618
• Court: Mississippi Supreme Court
• Parties: ALONZO COOK v. STATE OF MISSISSIPPI

43 So. 618

90 Miss. 137

ALONZO COOK v. STATE OF MISSISSIPPI

No. 12,550

Supreme Court of Mississippi

April 29, 1907

FROM the circuit court of Calhoun county, HON. JOSEPH T. DUNN Judge.

Cook the appellant, was indicted and tried for the murder of one Crawford, convicted of manslaughter, sentenced to the penitentiary for twelve years and appealed--his second appeal--to the supreme court.

The facts as to the killing of Crawford, for which appellant and his brother, Daniel, were jointly indicted for murder, are set forth in the report of the case of Daniel Cook v State,85 Miss. 738, 38 So. 110.Severance and separate trials of the defendants were had, the appellant on his first trial being found guilty of murder and sentenced to the penitentiary for life, from which he appealed--his first appeal--and the judgment was reversed, and the cause remanded for a new trial.Lon Cook v. State,38 So. 113.

Affirmed.

Stone &amp Sivley, for the appellant.

The first assignment of error is, that the court erred in overruling appellant's motion to quash the jury box, and also erred in refusing to order the sheriff to summon another venire.The second assignment of error is, that the court erred in overruling appellant's motion to quash the special venire drawn from the jury box.We discuss these two assignments of error jointly.The testimony taken upon these motions discloses the fact, that more than fifteen days before the convening of the regular March, 1906, term of the circuit court, the clerks of the circuit and chancery courts, together with the deputy sheriff of the county, met for the purpose of drawing the juries to serve at said term of circuit court.These officers, after opening the so-called jury box, spread the slips containing the names of county electors upon the table, with the names exposed to view, and each one of the officers, in turn, after looking over the names, selected an elector to serve upon the jury.This process was repeated, until a sufficient number of names were selected to constitute the grand and the petit jury for the term of court.The motion to quash the jury box, also sought to quash the regular jury, drawn for that term of court, because the drawing was not in accordance with the directions of Code of 1892, ch. 68, as amended by acts of 1896, p. 93.Code of 1892, §§ 2366 & 2367, providing for the manner of drawing juries in vacation, was not observed in any particular.Under Code 1892, § 2358, and acts of 1896, p. 93, the board of supervisors of each county are required in making up the jury box, to apportion from each supervisor's district, the names to be placed in the jury box, in proportion to the number of electors in each district.The chancery clerk, Clements, testified that a regular number from each district of the county were placed in the jury box, although the five districts did not each have the same number of inhabitants.We, accordingly, submit that the jury box, as originally made up, was illegal, and should have been quashed.When the special venire was drawn from this illegally constituted jury box, and selection of the jury from this venire was made, appellant moved to quash the special venire, which motion was erroneously overruled.Code of 1892, §§ 2358,2366and2376; Laws of 1896, p. 93;Purvis v. State,71 Miss. 706, S.C., 14 So. 268.

This drawing of the jury, with the names of the jurors exposed and in full view, is clearly within the condemnation of this court in the recent decision of Shepherd v. State,89 Miss. 147, 42 So. 544.

The testimony showed that the jury box was an old, wooden, ballot box, with a hole cut in it for the purpose of depositing votes, and a sliding top which could easily be adjusted without unlocking the box, and that the box was never kept sealed, thus, in its very construction, giving every opportunity for fraud.In fact, upon the hearing of the motion to quash the box, slips, containing the names of jurors, were removed from it while it was locked and supposedly intact.Whether there was, in fact, any fraud perpetrated upon appellant, we are unable to say, but we do strenuously insist that appellant's legal rights were recklessly disregarded, and if the three commissioners named had desired to commit a fraud, they would have had every opportunity so to do.The record shows that the sentiment of the county was very much wrought up over the killing which resulted in the indictment of appellant, and nearly a week was required in the examination of over three hundred venire men before a jury was finally secured.Under these circumstances, the appellant certainly had a right to ask that the jury box be quashed, and that another special venire should be secured, in a method prescribed by law.

The third assignment of error is, that the court erred in refusing to sustain appellant's challenges for cause to certain jurors, Langston, Shippy and Reynolds, and required the appellant to challenge peremptorily these three jurors, when the testimony upon voir dire showed that they were each clearly disqualified to serve as jurors.At the time, appellant had, however, exhausted his twelve peremptory challenges.The juror, Langston, testified, that some time before the trial, he had heard from various sources about the killing, and, moreover, that a juror who had served on a former trial of the case, had told him what different witnesses at that trial had said the facts were, and, as a result, he, Langston, had formed a fixed opinion which would require strong evidence to remove.He practically stated that, if impaneled as a juror, he would enter upon the trial of the case with his mind made up, and it would so remain, unless the evidence was sufficiently strong to cause him to change his opinion, as he believed the facts which the juror told him had been stated on the former trial.While it is true, that Langston said that he had neither prejudice nor feeling in the case, and thought he could try appellant impartially, yet, he was clearly disqualified under the rule announced by this court in Klyce v. State,79 Miss. 658, S. C., 31 So. 339.See alsoJeffreys v. State,74 Miss. 675, S.C., 21 So. 526;Shepprie v. State,79 Miss. 740, S.C., 31 So. 416;Fugate v. State, 82 Miss. 189, S.C., 33 So. 942.

The juror, Shippy, testified that different persons told him the substance of what the witnesses for the state had testified to in the former trial of the case, and that one of these witnesses for the state, whose testimony was so detailed, was well known to Shippy as a reputable man who would tell only the truth.As a result of this, Shippy had already formed an opinion as to the guilt or innocence of the appellant.

As for the juror, Reynolds, he testified that he had an opinion which was based on the reports which he had heard in the past, and that it would take evidence to remove this opinion.He further stated, that as he was deaf, it was probable that he would not hear a portion of the testimony on the trial.From his having such an opinion, and because of his physical inability to hear freely evidence which was possibly necessary to change his opinion, we submit that he was an incompetent juror.

We do not think that the cases of Gammons v. State,85 Miss. 103, S.C., 37 So. 609, andEvans v. State,87 Miss. 459, cited by the learned assistant attorney-general to support his contention that the jurors were competent, are in point.

H. H. Creekmore, on the same side.

It is apparent, from the evidence introduced on the hearing of appellant's motion to quash the jury box, that the two clerks and the deputy sheriff, in drawing the juries for the term of the circuit court at which appellant was to be tried, pursued exactly the same method as was followed in the drawing of the grand jury which indicted the defendant in the case of Shepherd v. State,89 Miss. 147, S.C., 42 So. 544.

It is contended by the learned assistant attorney-general that the selection of the petit jury in such manner did not constitute reversible error in this case, for the reason, that our jury laws are directory and not mandatory, and that, accordingly, appellant cannot complain of the illegality of the petit jury, inasmuch as he was granted a special venire at his request.Such contentions are not tenable, because, while our jury laws are directory, there must yet be some substantial compliance with the scheme of the law; and also because the appellant had the right to a choice between a special venire and a regular venire, legally drawn and impaneled.It was a violation of the rights of appellant to take from him his right to be tried by a regular venire, if he so chose.Yet the action of the jury commissioners, in drawing what purported to be a regular venire in violation of the statute, precluded the appellant from exercising such choice.

It is further submitted, that the jury box was not a legal jury box.If we waive the question whether the jury box as originally made up by the board of supervisors was legal, we still have presented the question whether, after the opening of the box by the two clerks and the deputy sheriff, the spreading of the names upon the table, and the examination of the same, the box continued to be, in contemplation of law, a legal jury box.

Eighty of the slips containing names were illegally taken from the jury box in the method prescribed, thus leaving the jury box practically robbed of two-fifths of the names originally placed in it.It is true, that the same number of names would have been taken from the jury box if the drawing had been done legally, but not the same names as would have been drawn, had the officers proceeded under the strict requirements of the statute law.Appellant was accordingly not given a legal trial.Nealon v. People,39...