Ellis v. State

• Citation: 107 So. 757,142 Miss. 468
• Decision Date: 05 April 1926
• Docket Number: 24734
• Court: United States State Supreme Court of Mississippi
• Parties: ELLIS v. STATE. [*]

107 So. 757

142 Miss. 468

ELLIS v. STATE. ^[*]

No. 24734

Supreme Court of Mississippi

April 5, 1926

Division B

GRAND JURY. Jury. Under the facts, held there was a complete departure from the statute, and so no valid jury lists and grand and petit juries should have been summoned from the body of county (Code 1906, sections 2714, 2718 [Hemingway's Code, sections 2207, 2211]).

The board of supervisors, which can act only through its minutes having made no attempt to comply with the statute as to making up the jury box, but there having been a mere handing to the clerk, by the individual members of the board, of lists of names from their respective districts, to be put in the jury boxes, which were neither signed nor marked "Filed" by the clerk, nor put on the minutes of the board, held there was a total departure from the statute, not cured by Code 1906, section 2718 (Hemingway's Code section 2211), declaring directory only all provisions of law with reference to listing, summoning, and impaneling juries and no valid jury lists were in the boxes, and hence grand and petit juries for the term should have been summoned from the body of the county, pursuant to section 2714 (section 2207).

HON. G. E. WILSON, Judge.

APPEAL from circuit court of Leake county, HON. G. E. WILSON, Judge.

Bill Ellis was convicted of manslaughter, and appeals. Reversed and remanded.

Reversed and remanded.

E. O. Sykes and Eastland & Mize, for appellant.

The court erred in overruling the motion of the appellant to quash the jury panel. The question for the determination of the court is whether in the drawing of these names which went into the jury boxes there was a total departure from the jury laws. If there was, then under the decision of this court in Lee v. State, 103 So. 233, 138 Miss. 474, the motion was well taken and should have been sustained. See section 2688, Code of 1906 (section 2180, Hemingway's Code). This section of the code makes it the duty of the board of supervisors to select and make a list of persons to serve as jurors for the twelve months ensuing. This list of jurors so selected by the board must be turned over to the clerk of the court. The chancery clerk is ex officio clerk of the board. This clerk shall put the names from each supervisor's district in a separate box. These boxes shall be kept locked. Again the board shall cause the jury boxes to be emptied and refilled at that very meeting. In other words, all of this must be done during the session of the board of supervisors. These boxes must be then filled and the boxes locked during the meeting of the board.

The board can only speak through its minutes. This, of course, is elementary. The only order relating to this subject ever passed was the one in January continuing the matter of filling the jury boxes until the next meeting of the board in February. In February instead of attempting to comply with this statute, the board, as a board, did nothing. Each individual member of the board gave to the chancery clerk a list of names of people in his district, these names to be put in the jury box. This list was not even signed by the individual member. The chancery clerk gave these lists to the circuit clerk and the circuit clerk emptied the jury boxes and filled them with these names.

Appellant was to be tried by a petit jury drawn from these very boxes. He was, therefore, denied the same substantial and valuable rights that Lee was denied in the case cited. Only in this case, he was doubly denied that right; namely, in the failure to draw properly the grand jury and the petit jury.

J. L. Byrd, assistant attorney-general, for the state.

We are met at the threshhold of this case with the proposition that the grand jury panel should have been quashed on the motion of the appellant made before the jury was impaneled. The motion was made in time and the only question is, was the motion well taken?

We think counsel's position is untenable. The ground of objection to the jury panel was that the board of supervisors had not properly filled the jury box, in that the members of the board of supervisors had not actually filed the list of juror's and had put nothing on the minutes to show who had been selected as jurors. They say that the jury box was filled in such a manner as would have been tantamount to an indiscriminate filling of the box with names of just anyone whose name occurred to the person who filled the box. In support of their contention they cite Lee v. State, 103 So. 233. The Lee case is not an analogous case for the reason that the question before the court then was not the filling of the jury box; but the question was whether or not the circuit judge committed error in refusing to use the names already in the jury box and by ordering the sheriff to go out into the county and summon a venire, instructing the sheriff at the time not to select anyone who was kin to either the deceased or to the defendant. Counsel overlook Atkinson v. State, 137 Miss. 42, where the same question was raised as in this case, and this court said that the trial court was correct in overruling the motion to quash the panel because section 2718, Code of 1906, provides that all of the provisions of law in relation to the listing, drawing, summoning and impaneling of juries are merely directory.

The record nowhere shows that the grand jurors who were actually selected were not fair and impartial and otherwise qualified to act as grand jurors. The court was not in error in overruling the motion to quash the panel.

Argued orally by E. O. Sykes, for appellant.

OPINION

ANDERSON, J.

Appellant was indicted and convicted at the November, 1924, term of the circuit court of Leake county of the crime of manslaughter in taking the life of Malcolm Stewart, from which judgment he appeals to this court.

In due time, appellant made a motion to quash the entire jury panel for the term of court at which he was tried, which, of course, included the grand jury, upon the ground that their names had been drawn from what purported to be the regular five jury boxes provided for by law, when, in truth and in fact, there were no valid jury lists in the boxes from which to draw the grand and petit juries for the term. Appellant's motion was overruled, and he was indicted and tried during that term of the court. The action of the court in overruling that motion is assigned and argued as error.

N. F. Wallace was chancery clerk, and by virtue of his office clerk of the board of supervisors of Leake county, and as such custodian of the minutes of the board. He showed by his testimony, which was undisputed, the facts with reference to the making up of the jury lists for Leake county for the year 1924, which were as follows:

There was an order entered on the minutes of the board at its January meeting, 1924, continuing the matter of selecting the names for the jury boxes until its next regular meeting. No other order was entered on the minutes of the board with reference to the matter, either at the February meeting or at any other meeting during that year. At the February, 1924, meeting, the members of the board handed to Wallace, the clerk, type-written lists of names from their respective districts to be put into the jury boxes. These lists were not signed nor marked "Filed" by the clerk, or put on the minutes of the board of supervisors; on the contrary, the board took no action whatever with reference thereto, either on their minutes or otherwise. Wallace, the clerk, made a copy of the lists which he handed to the circuit clerk, E. R. Henderson. Upon their receipt, the latter emptied the old names out of the jury boxes and put therein the names so handed him in place of those emptied out. From the lists so made up, the grand and petit juries for the term of court at which appellant was tried were drawn.

Appellant's position is that the jury lists thus made up were void, that under the law, there were no jury lists, and therefore there were no legal grand and petit juries for the term of court at which appellant was indicted and tried. Appellant contends that section 2718, Code of 1906 (Hemingway's Code, section 2211), declaring that all the provisions of law with reference to listing, summoning, and impaneling juries shall be directory only, has no application, because here no effort was made by the board of supervisors to comply with the governing statute, that there was a total departure therefrom; while the position of the state is that the statute controls, and that what occurred in this case was a mere irregularity in the listing of the names for jury service, which...