Ferguson v. State

• Citation: 65 So. 584,107 Miss. 559
• Decision Date: 29 June 1914
• Docket Number: 17378
• Court: United States State Supreme Court of Mississippi
• Parties: FERGUSON v. STATE

65 So. 584

107 Miss. 559

FERGUSON v. STATE

No. 17378

Supreme Court of Mississippi

June 29, 1914

APPEAL from the circuit court of Yalobasha county. HON. N. A TAYLOR, Judge.

Walter Ferguson was convicted of manslaughter and appeals.

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

Affirmed.

I. T Blout, for appellant.

The first and most important question, to the defendant, to be discussed in this case, is whether or not, he has had a constitutional trial by a legally constituted jury. If he has not, this court will not hesitate to grant him that right. The prerequisite to an impartial jury trial, is the empaneling of a jury according to the statute, and until this is done, according to the law then in force, there is no jury, and everything done in the trial, or supposed trial, is a nullity.

Code 1906, chapter 72, section 2715, explicitly says how juries in capital cases shall be selected, and when a court departs from that law, he infringes on the rights of defendant and is on dangerous ground. Dangerous both to the state and the defendant.

Let us see for a moment what was done in this case. First, on arraignment, the district attorney, "moved the court (see record page 7), for a special venire to consist of one hundred men to be summoned from the entire county" which motion being considered was sustained and the venire ordered drawn, in the following words: "And comes the district attorney in this case and moves the court, for a special venire to be drawn from the county at large, from both circuit court districts, of the county--fifty names to be drawn from the jury box of the second district and likewise fifty names to be drawn from the first court district of the county, such to be done owing to the fact that the legal jury box of the first district, from which to draw, has been exhausted, and cannot serve as jurors in this case. Defendant by attorney objected and protested against these proceedings, for the reason as given, that there is no law to authorize such. (Objection overruled).

The evidence introduced, on which this order was based, was the testimony of D. E. Parks, circuit clerk, and it shows that there were two jury boxes in the county, one for the first and one for the second court district. He said the "names in the first court district had been exhausted." How exhausted? After this testimony was given, and without further ado, the court ordered arbitrarily, the issuance of the venire, defendant objecting to the proceeding for the venire issued and the return thereon, and to the drawing of the venire from the second district.

Conceding the discretionary power of the court, in organizing juries, that power (though directory only), does not go to the extent of abrogating the law, and allow judges to frame up juries regardless of the law. Nor do I understand that a court can make such aribtrary orders as was made in this case.

Frank Johnston, for appellee.

Yalobusha county is divided into two judicial districts. In this case a special venire of one hundred jurors was awarded by the court to be drawn from the county. Fifty of these were drawn from the jury box of district number one, and it appearing to the court by the testimony of the clerk and an examination of the jury box, that the jury box for the first district had been exhausted with the exception of only three names. The court then directed that the fifty men from district number one should be summoned to complete the special venire of one hundred, designated by the court,. It appears moreover, by the evidence before the court, that in a previous term of the court, all names had been drawn out of the box for district number one and that all had performed jury service at a previous term of court. This being the precise condition of the jury box, an order was made by the court that fifty jurors should be summoned from district number one. This method of procedure, in procuring a special venire, is objected to by counsel as constituting a reversible error.

It was expressly held by this court in the case of Steele v State, 76 Miss. 378, that it was not reversible error in a capital case to refuse, before and after exhausting the regular venire, to receive, as a juror, a member of the special venire who was absent on the call, but who, when he was present, was offered by the defense and thereupon order tallisman to be summoned, where the record show that the refusal was not thereby prejudicial to the defendant. It is the usual practice where there are not enough names in the jury box, or in case where the special venire has been exhausted, without getting a jury for the court, to order the sheriff to go out and...