Haynes v. State

• Decision Date: 24 November 1908
• Docket Number: 13,392
• Citation: 93 Miss. 670,47 So. 522
• Court: Mississippi Supreme Court
• Parties: POSEY HAYES ET AL. v. STATE OF MISSISSIPPI

47 So. 522

93 Miss. 670

POSEY HAYES ET AL. v. STATE OF MISSISSIPPI

No. 13,392

Supreme Court of Mississippi

November 24, 1908

FROM the circuit court of, first district, Hinds county, HON WILEY H. POTTER, Judge.

Haynes Jonas Mixon, and another, appellants, were indicted, tried and convicted of burglary and appealed to the supreme court. The facts touching the only question in the case are fully stated in the opinion of the court.

Judgment affirmed.

Robert P. Thompson, Charles B. Hamilton and Lamar Easterling for appellant.

The only question presented by the record in this case is whether or not the indictment against defendant is a valid indictment, or putting the question another way, whether or not the grand jury who found this bill of indictment was a legally constituted body. The precise question is whether or not the judge can reassemble the grand jury who had been discharged by the court and dismissed for the term.

There is no doubt but that the court may adjourn the grand jury from day to day during the term. In fact this power is expressly given. Code 1906, § 2706. And the court is given the power to fill vacancies in the grand jury whenever necessary from any cause. Code 1906, § 2705.

The question at issue in this case is whether or not the court had the power under the law to reassemble, and thus to give life to a body that had ceased to exist, and hence, no legal body at all. To hold that the court may after discharging a jury have them reassembled at any other time during the term is equivalent to holding that the court has the power to summon or have summoned another separate and distinct grand jury. We do not know of any such law, or precedent authorizing such course in this state. The only mode, except in certain exceptions, of drawing grand jurors is that laid down in Code 1906, § 2700, and it is certain that this is the only method followed in this state. In this state grand jurors are drawn not for any specified time as one year, as in some other states, but always for a certain term of court. In the latter part of Code 1906, § 2686, it is said: "Grand jurors shall serve until discharged by the court." Now the question is, after the grand jury have made their final report to the court and asked to be discharged, and the court has actually discharged said jury, and they have proved their time and drawn their pay and gone home and ceased to be jurors, can the court call them back and have them reassembled into a lawful grand jury with its powers and duties? The law says they shall serve until discharged by the court, but nowhere that we can find does it say that the court can call back the same grand jurors after they have been discharged and ceased to exist as a lawful body.

Appellant Mixon is not complaining of any irregularity in the summoning and selecting a grand jury according to law, but his is a challenge to the legality of the body itself, which we think is not merely an irregularity but a constitutional right. If, under our law, the court had no power to reassemble and give life to a defunct body, then the very ground work and base of the indictment itself falls to the ground and the constitutional guaranteed rights of the appellant have been invaded and he has been deprived of his liberty without due process of law.

Even if it be admitted for the sake of argument that the circuit court has the inherent power derived from the common law to impanel a new grand jury at a term of court, still it does not follow that it has the power derived from the common law to reassemble a grand jury that has been legally and finally discharged. In the case of Newman v. State, 43 Texas 535, it is said: "We know of no authority either on principle or practice for issuing a venire to enable a sheriff to select a new grand jury after that for the term has been discharged."

George Butler, assistant attorney general, for appellee.

The precise question is, can the judge after discharging the grand jury which had been impaneled for the term, reassemble them during the term when the public interest requires it

The policy of the law is that every one charged with crime shall have a speedy and fair and impartial trial.

It has long been determined in this state that our circuit courts in the administration of the criminal laws have all the powers of courts of Oyer and Terminer and general jail delivery of England. Under our laws the grand jury are impaneled for the full term, but may under Code 1906, § 2686 as at common law, be discharged when the business then before them is finished. And under section 2706, may be adjourned to a subsequent day of the term. These provisions are simply declaratory of the common law, and the court is thereby given no greater power than it possessed without it.

By permission of Judge J. A. P. Campbell his views of the subject contained in a private letter to the attorney general are herewith presented. He writes:

"The circuit court has some inherent power by virtue of the constitutional grant of jurisdiction. 1 Howard (Miss.) 238; 2 Ib. 655; 16 Ark. 37; 34 Ib. 720; 20 Iowa 413. The grand jury was impaneled for the term. Its dispersion by consent of the court did not hinder its reassembling under the authority of the court. Every order and judgment is in the breast of the judge during the term and subject to change. If he found that there was need for the grand jury during the term after dismissing it no law was violated by recalling it. The statute, section 2706, authorizes adjournment of the jury to a later day of the term. The object of this is to save expense. The court would have the power without the statute. The statute does not affect it. There is nothing in the idea of a separation or dispersion of the jury affecting the power when reassembled under direction of the court. The grand jury disperses daily. It may adjourn for days or weeks during the term. It fixes its own hours of meeting and adjourning. Suppose the judge had told the jurors they might go and if he should want them they would be notified, no question would have been made as to the right to recall them. How could the fact that he did not announce to them a possible recall affect his right to recall them? It would be wise at every term of several weeks to dismiss the grand jury to a late day in the term so that were an indictment quashed or a crime be committed during the term, the jury could be assembled and indict. Celerity in administering criminal law is conducive to public welfare. The law provides for adjournment to a future day and consists with adjournment without day subject to notification. The only difference is that in one case a day for reassembling is fixed, in the other not. The latter is better, because it avoids expense as reassembling may not be necessary and per diem will not be payable. The very letter of the statute (sec. 2706) would have been observed, if the judge had dismissed the jury to a future day named, the spirit of the statute was not violated in the course pursued. Qui Haeret in litera, haeret in cortice."

What are the objections to this precedure? Not that any of the grand jurors were disqualified. Not that they were prejudiced or biased against appellant; not that the safeguards of the citizen charged with crime were disregarded in the original selection; not that he was deprived of any right to object to the panel. But simply that after their oral discharge they were reassembled and returned this indictment. By this course a new body was not selected and created. Jurors of the court's own choosing were not called to the box. It was the assembling of the very body selected for that term in the manner required by law.

"When an emergency arises requiring the presence of a grand jury after the regular body has been discharged in the absence of statutory authority to summon a new panel, the court should set aside the order of discharge and reassemble the previous grand jury." Thompson & M. on Juries, Sec. 497.

WHITFIELD, C. J. FLETCHER, J., took no part in the decision of this case.

OPINION

WHITFIELD, C. J.

The appeal in this case was dismissed as to all the defendants except Jonas Mixon.

The facts in this case are as follows. On the first Monday of March, 1908, the 2d day of March, the court was duly convened and the grand jury duly impaneled and continued in regular daily session till March 17th, when they returned into court a report purporting to be a final report and asking for their discharge. Whereupon the court verbally from the bench discharged them, and thereupon they drew their pay and dispersed. Afterwards several serious crimes took place in that judicial district of the county, and on verbal order of the court the jury was notified to reassemble and instructed to investigate these alleged crimes. After this reassembling, this indictment was returned and filed, and motion made to quash, after the overruling of which the defendants were convicted, and from that conviction prosecute this appeal. The precise question is: Can the judge, after discharging the grand jury which had been impaneled for the term, reassemble them during the term when the public interest requires it?

Under our law the grand jury is impaneled for the full term. Under Code 1906, § 2706, the court may adjourn the grand jury to a subsequent day of the term. Every order and judgment of the court is in the bosom of the court during the term, and subject to such change as necessity may require. One of the most essential things in the administration of the criminal law is celerity in the trial of persons charged with crime. The constitution itself guarantees a speedy trial. In a case where...