Hardy v. State

• Decision Date: 07 March 1910
• Docket Number: 13,751
• Citation: Hardy v. State, 96 Miss. 844, 51 So. 460 (Miss. 1910)
• Court: Mississippi Supreme Court
• Parties: WILLIAM H. HARDY, JR., v. STATE OF MISSISSIPPI

51 So. 460

96 Miss. 844

WILLIAM H. HARDY, JR., v. STATE OF MISSISSIPPI

No. 13,751

Supreme Court of Mississippi

March 7, 1910

FROM the circuit court of Lincoln county, HON. MOYSE H. WILKINSON Judge.

Hardy appellant, was indicted in the circuit court of Franklin county for embezzlement and upon arraignment pleaded not guilty. Thereafter the venue was changed to the circuit court of Lincoln county. After the cause reached the last named court, the defendant moved to quash the indictment on the ground that the record failed to show that the grand jury, by whom it was returned, had been sworn as required by law. The court below overruled the motion. The defendant was then tried and convicted and appealed to the supreme court.

Reversed.

Deavours & Shands, Bennett & Torrey, McNair & McNair and J. L. Arnold for appellant.

J. B. Stirling, attorney-general, for appellee.

[The reporter has been unable to find the briefs of counsel in this case, hence no synopses of them are given in this report.]

OPINION

SMITH, J.

Appellant was convicted of embezzlement in the court below and appeals to this court.

A motion to quash the indictment was filed in the court below, and overruled; the ground of the motion being that the grand jury which found the indictment was not sworn. The minutes of the court at which the indictment was found contain no statement that the grand jury was sworn. In Cody v. State, 4 Miss. 27, 3 Howard 27; Abram v. State, 25 Miss. 589; and Foster v. State, 31 Miss. 421, it was held that the swearing of the grand jury must affirmatively appear from the record, and in default thereof an indictment found by such grand jury was void. The holding of these decisions has long since become the settled law of this state, the only change therein made by the legislature being that such objection must be made before verdict (Hays v. State, ante 153, 96 Miss. 153, 50 So. 557); and this appellant did by filing his motion to quash. In Smith v. State, 28 Miss. 728, it was also held that the swearing of the grand jury must be ascertained by an inspection of the record.

It is contended by the state that this defect in the record was waived: First, because a plea of not guilty was entered, and not withdrawn before the motion to quash was made; second because this motion was made for the first time in the circuit court of Lincoln county, to which a change of venue had been granted from Franklin county...