Gibson v. State

• Court: Mississippi Supreme Court
• Writing for the Court: COOPER, J.
• Citation: Gibson v. State, 12 So. 582, 70 Miss. 554 (Miss. 1893)
• Decision Date: 27 March 1893
• Parties: JOHN GIBSON v. THE STATE

12 So. 582

70 Miss. 554

JOHN GIBSON v. THE STATE

Supreme Court of Mississippi

March 27, 1893

FROM the circuit court of Warren county, HON. R. W. WILLIAMSON Judge.

Judgment reversed, new trial awarded and cause remanded.

No counsel for appellant.

Frank Johnston, attorney-general, for the state.

Literally a full panel was presented to the prisoner at the outset. The question is whether, under § 1423, code 1892, it was proper to permit a separate presentation of jurors to fill the panel. I submit the question to the court.

Argued orally by Frank Johnston, attorney-general.

OPINION

COOPER, J.

The appellant has been convicted of the crime of murder, and sentenced to capital punishment.

He is not represented in this court by counsel, but, in cases of this character, it is our custom to scrutinize the record and affirm or reverse according as it shall appear that the conviction was properly or improperly had, and without reference to whether error has or has not been assigned under our rules.

It appears from the record that in impaneling the jury by which appellant was tried, a panel was completed and accepted by the state, and then tendered to the defendant, who peremptorily challenged seven jurors, leaving five in the box. The appellant then asked that the state should be required to again fill the panel before he should be put to further challenges, which request was refused, to which action he excepted. In completing the panel, the court directed that each juror should be first examined and accepted by the state and then tendered to the defendant, who should challenge or accept the juror. The defendant excepted to this ruling, and exhausted his peremptory challenges before the panel was completed.

The question presented by this ruling of the trial court is, whether, by § 1423 of the code of 1892, the defendant is entitled to a full panel whenever called on to exercise any one of his peremptory challenges. Before the enactment of this section, it is settled by several decisions that the course pursued would have been legal. Thompson v. The State, 58 Miss. 62; Smith and Cavin v. The State, 61 Miss. 754.

Section 1423, code 1892, is as follows: "In capital cases, the defendant and the state each shall be allowed twelve peremptory challenges. In cases not capital, the accused and the state each shall be allowed four peremptory challenges. But all peremptory challenges by the state shall be made before the juror is presented to the prisoner; and in all cases the accused shall have presented to him a full panel before being called upon to make his peremptory challenges."

The learned judge below obviously thought the injunction of the statute, that the accused should have presented to him a full panel before being called upon to make his peremptory challenges, had been fully complied with when one complete panel had been tendered, misled, probably, by the preceding clause requiring the state to exercise its peremptory challenges "before the juror is presented to the prisoner."

The section--copied from former codes, except as to its concluding clause--is not happily worded. In the first clause the defendant in capital cases is called the "defendant;" in the second, the defendant, in cases not capital, is called the "accused;" in the first sentence of the third clause the defendant is called the "prisoner," and, in the second, the "accused." If we should follow the general rules of construction, that the same meaning is intended for the same expression in every part of the act, and that a change of expression is intended to change the meaning, we should construe the word "defen...