Harris v. State

• Decision Date: 16 December 1929
• Docket Number: 28260
• Court: Mississippi Supreme Court
• Parties: HARRIS v. STATE

125 So. 253

155 Miss. 794

HARRIS v. STATE

No. 28260

Supreme Court of Mississippi

December 16, 1929

Division A

1. JURY. Where only sixteen of twenty jurors summoned were present and court excused eight, there was no irregularity where rest were called from bystanders sheriff had requested to be present (Hemingway's Code 1927, sections 735, 2359, 2363).

In liquor prosecution where only sixteen of twenty jurors drawn and summoned as required by Laws 1926, chapter 131, section 8, Hemingway's Code 1927, section 735, were present and court excused eight of them, there was no irregularity warranting quashing of jury, absent any showing of fraud where rest of jury and talesmen were called from bystanders present who had been notified by sheriff before court convened to be present in court, such procedure being authorized by Code 1906, section 2712, Hemingway's Code 1927, section 2359, and Code 1906, section 2716 Hemingway's Code 1927, section 2363, provides that challenge to array shall not be sustained, except for fraud.

2. JURY. That regular jurors drawn were summoned by sheriff within less than five days of convening of court did not warrant quashing of jury (Hemingway's Code 1927, section 2365).

That regular jurors drawn were summoned by sheriff within less than five days of convening of court did not warrant quashing of jury, in view of Code 1906, section 2718, Hemingway's Code 1927, section 2365, providing that statutory provisions relating to drawing, etc., are directory.

3 JURY. Panel should not be quashed except for fraud and unless there was total departure from course described by statute (Hemingway's Code 1927, sections 735, 2359, 2361, 2363, 2365).

Under Code 1906, sections 2716, 2718, Hemingway's Code 1927, sections 2363, 2365, panel should not be quashed except for fraud, actual or legal, and unless there was total departure from prescribed definite course as outlined by Laws 1926, chapter 131, section 8, Hemingway's Code 1927, section 735, and Code 1906, sections 2712, 2714, Hemingway's Code 1927, sections 2359, 2361, as to soliciting, drawing, summoning, and impaneling.

4. JURY. Persons whom sheriff had previously notified to be at court were "bystanders" within jury statute (Hemingway's Code 1927, section 2359).

Persons whom sheriff had notified before court convened to be present in court were "bystanders" within meaning of Code 1906, section 2712, Hemingway's Code 1927, section 2359, relating to completing juries from bystanders under certain circumstances.

5. JURY. That judge anticipated shortage of jurors and asked sheriff to request persons to be present at court did not show departure from statute (Hemingway's Code 1927, section 2359).

That judge anticipated shortage of jurors and asked sheriff to request sufficient number of competent, impartial, and qualified men to be present at court to fill panel therefrom, did not show departure from Code 1906, section 2712, Hemingway's Code 1927, section 2359, so long as judge did not designate any particular man to be thus present.

HON. W. J. PACK, Judge.

APPEAL from circuit court of Forrest county HON. W. J. PACK, Judge.

Monroe Harris was convicted of selling intoxicating liquor, and he appeals. Affirmed.

Affirmed.

Morris & Wingo, of Hattiesburg, for the appellant.

The court erred in overruling the motion to quash the jury.

Section 8, chapter 131, Laws of 1929; Section 735, Hemingway's Code 1927.

Persons previously notified by the sheriff to be present at a given time to be called as talesmen are not bystanders.

Phillips v. Gratz (Pa.), 2 Pen. & W. 412, 23 Am. Dec. 33; Savage v. State, 18 Fla. 909; State v. Jones, 14 S.W. 946, 102 Mo. 305.

When the court found itself unable to select a jury of twelve men from the twenty jurors who had been drawn, the court had one of two remedies: First, either to direct the sheriff to call bystanders who were present in court, and not those who had been, prior thereto, notified to be present; or, to draw additional names from the jury box.

W. A. Shipman, Assistant Attorney-General, for the state.

The supreme court will not interfere with the discretion of the lower court in the impaneling of a jury unless it appears that there was a gross and injurious exercise of it.

Cook v. State, 90 Miss. 137, 43 So. 618; Head v. State, 44 Miss. 731.

OPINION

McGowen, J.

In the county court Harris, the appellant, was convicted of, and sentenced for, the unlawful sale of intoxicating liquor, from which conviction and sentence he appealed to the circuit court, where the case was affirmed; and appeal is prosecuted here.

There was ample evidence to sustain the conviction, and while a number of errors are assigned, all save one are absolutely without merit. This assignment of error is as follows: "The court erred in overruling the motion to quash the jury." The record discloses that a motion "to quash the jury" was made in another case called prior to the time this case was called, and that it was overruled by the county court; and the same motion was made in this case.

The record shows that the motion was based on the idea that twenty were drawn as jurors for that week; that the sheriff did not make his return on the venire facias until the case was called for trial; that the sheriff had, before court convened, notified a number of citizens to be present in court, and they were there; that there were sixteen of the twenty jurors drawn and summoned; that the court excused eight of this number for various reasons, and, according to the evidence of the circuit clerk, the remaining eight were then present and impaneled on the jury. Counsel for appellant says only seven of the original panel remained on the jury. It is immaterial as to whether it was seven or eight, the rest of the jury and talesmen were called by the sheriff from the men present who had been summoned by him to be present on the convening of court. The sheriff testified that he usually pursued this course in anticipation that a sufficient number of jurors would not be obtained from the regular quota. The court dictated a statement into the record that it had instructed the sheriff to pursue this course, because of the delay in getting jurors in case there was a deficiency, and that this was its custom.

The gravamen of appellant's complaint here is that men directed by the sheriff to attend court in advance thereof and calling them to fill in the panel was not in compliance with the statute, such men so called not being bystanders within the meaning of the statute, otherwise there is no contention here that the jurors who tried this case were not competent, fair and impartial, qualified, and legally impaneled. The judge of the court had nothing to do with selecting any particular man called to serve; the sheriff did this.

We do not think the action of the court and the sheriff in thus impaneling the jury in this cause was irregular. No hint of actual fraud appears in this record. The appellant was denied no substantial right; no substantial departure from the provisions of the applicable statutes was had; and no legal fraud was imposed on the appellant.

Section 735, Hemingway's Code 1927, section 8, chapter 131, Laws 1926, provides that twenty names, shall be drawn from the jury box in a manner provided by law for the drawing of jurors in the circuit court. This was done; they were all served by the sheriff with process, sixteen of the twenty appeared in court, and eight or nine were excused by the court on showing to which no objection was made. Section 726, Hemingway's Code 1927, section 2, chapter 131, Laws 1926, provides that the rules of pleading, practice, and procedure shall be those now or hereafter established as governing the several other courts as respect the several matters mentioned; that is, a suit of which the chancery court theretofore had jurisdiction would be tried as if in that court, and likewise as to the justice of the peace court and the circuit court.

Section 2359, Hemingway's Code 1927, section 2712, Code 1906, provides as follows: "After the drawing of the grand jury, the remaining jurors in attendance shall be impaneled into two petit juries for the first week of court if there be a sufficient number left, and, if not, the juries may be completed from the bystanders, or the court may direct a sufficient number for that purpose to be drawn and summoned; but if there be more than enough jurors for the two juries, or for one jury if the court shall direct only one to be impaneled, the excess may be discharged, or they may be retained, in the discretion of the court, to serve as talesmen; and, if so retained, they shall have the privilege of members of the regular panel, of exemption from service."

Section 2361, Hemingway's Code 1927, section 2714, Code 1906, is in this language: "If at any regular or special term of a circuit court it appear that jurors have not been drawn or summoned for the term, or for any part thereof, or that the jurors have been irregularly drawn or summoned, or that hone of the jurors so drawn or summoned are in attendance, or not a sufficient number to make the grand jury and two petit juries, the court shall immediately cause the proper number of jurors to be drawn from the box and summoned, or, if there be not a jury box to be drawn from, the court shall direct the requisite number of persons, qualified as jurors, to be summoned to appear at such time as the court shall appoint, and the court shall thereupon proceed as if the jurors had been regularly drawn and summoned."

Section 2363, Hemingway's Code 1927, section 2716, Code 1906 provides: "A challenge to the array shall not be sustained, except for fraud, nor shall any venire facias, except a special venire...