Ingram v. State, No. 48900

• Decision Date: 09 March 1976
• Docket Number: No. 48900
• Citation: 330 So.2d 602
• Parties: Danny W. INGRAM v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 602

330 So.2d 602

Danny W. INGRAM v. STATE of Mississippi.

No. 48900.

Supreme Court of Mississippi.

March 9, 1976.

Rehearing Denied May 11, 1976.

Johnston, Pritchard & Wright, Pascagoula, for appellant.

A. F. Summer, Atty. Gen. by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, ROBERTSON and SUGG, JJ.

SUGG, Justice.

We have considered defendant's nine assignments of error, but only two require discussion. (1) Was the indictment against defendant void because it was returned by a grand jury empanelled in April 1974 and reconvened September 23, 1974 after an intervening term of court in July? (2) Was there a fatal variance between the indictment and the proof offered by the state?

Defendant was convicted in the Circuit Court of Jackson County for the sale of heroin and sentened to a term of ten years in the state penitentiary. He argues that under out decisions in Joyce v. State, 1976, 327 So.2d 255 and Tubby v. State, 1976, 327 So.2d 272, the indictment was void.

In Joyce defendant was indicted in October 1974 by a grand jury which was empanelled at the July 1974 term of the Rankin County Circuit Court and reconvened after the August 1974 civil business term intervened. Mississippi Code Annotated section 9-7-53 (1972) provides for circuit court terms in Rankin County in the following language:

Rankin County: On the second Monday of January, thirty-six (36) days; on the first Monday of May, eighteen (18) days for civil business exclusively; on the second Monday of July, eighteen (18) days; on the third Monday of August, twelve (12) days for civil business exclusively; and on the second Monday of October, twenty-four (24) days.

We held that the grand jury was legally reconvened under the statute and under Article 14, Section 264 of the Mississippi Constitution, as amended in 1972, and stated:

The primary purpose in amending Section 264 was to allow a grand jury to remain empaneled until the next term of criminal court. The intervening August 1974 term of court, according to legislative mandate in Mississippi Code Annotated section 9-7-53 (1972), was 'for civil business exclusively'. The October, 1974, term was the next term of court at which criminal business could be heard and a grand jury empaneled, but this term could not legally open until October 14, 1974. The court was correct in recalling the July 1974 grand jury to act in vacation between terms.

In Tubby, supra, defendant was indicted at the September 1974 term by a grand jury empanelled at the September 1973 term of the Circuit Court of Neshoba County. The same grand jury was reconvened for service during the February 1974 term. When the grand jury was initially empanelled the court terms in Neshoba County were fixed by Mississippi Code Annotated section 9-7-27 (1972) as follows:

Neshoba County: On the first Monday of February, eighteen (18) days; on the third Monday of September, twelve (12) day; and on the fourth Monday of October, twelve (12) days for civil business exclusively.

The court terms in Neshoba County were changed by Chapter 319, Laws of 1974, effective March 5, 1974, as follows:

Neshoba County: On the first Monday of February, eighteen (18) days; on the second Monday of July, twelve (12) days for civil business exclusively; on the third Monday of September, twelve (12) days; and on the fourth Monday of October, twelve (12) days for civil business exclusively.

In Tubby we held that the motion to strike the indictment should have been sustained and stated:

The second assignment of error wherein the appellant contended during the trial, and now contends here, that the indictment is void, is well taken. A grand jury may be impanelled at a regular term of court, and it may be recalled at any time before the next criminal term of court in term time or in vacation, but when a new criminal court is convened, a new grand jury must be impanelled. The old grand jury may, however, report indictments obtained in vacation when it makes its final report for final discharge, but, the old grand jury cannot hear evidence and obain indictments at the second term of the criminal court.

Section 2436, ¹ Mississippi Code Annotated 1942 (Rec. 1956) is not applicable to the facts in this case since the indictment was returned by a body of men who were no longer authorized to act as grand jurors. See Joyce v. State, Miss., 327 So.2d 255, 1976.

In our case, the statute ² fixing the terms of court in Jackson County differ from the statutes involved in Joyce and Tubby in that it specifically provides that a grand jury shall be empanelled at the April and October terms, but leaves the empaneling of a grand jury at the January and July terms discretionary with the circuit judge. Mississippi Code Annotated section 13-5-39 (1972) provides that a grand jury shall not be empanelled for more than two terms of circuit court in each year unless otherwise directed by the circuit judge. ³ The statute requiring two grand juries in Jackson County at the April and October terms, and leaving the empaneling of grand juries at the January and July terms discretionary with the circuit judge, is consistent with section 13-5-39.

Since the statute under consideration is different from those considered in Joyce and Tubby, and since these cases used, without explanation, the words 'criminal term' to designate the term at which a grand jury should be drawn and empanelled, it is necessary to define 'criminal term' to avoid confusion. 'Criminal term' as used in Joyce and Tubby means any term of circuit court fixed by statute unless (1) the statute limits the term to civil business only, or unless (2) the statute specifically gives the circuit judge discretion in the matter of empaneling a grand jury, and none is empanelled. Both civil and criminal cases may be tried at any term unless one class of cases is prohibited by the statute fixing the term.

In our case, the grand jury which indicted defendant was empanelled for the April 1974 term and recalled on September 23, 1974. The July 1974 term intervened between the time the grand jury was empanelled in April and reconvened in vacation in September. Defendant contends that any indictment returned by the grand jury when it reconvened in September was void under the holding of Tubby, supra. He argues that since both civil and criminal cases could be tried at the July term, the July term was a criminal term. It is true civil and criminal cases could be tried at the July term; however, since the calling of a grand jury was discretionary with the judge and none was called, the April grand jury could be recalled at any time after the July term and before the October term which was the next term of court in Jackson County requiring that a grand jury be empanelled. This holding is consistent with our definition of the term 'criminal term' as used in Joyce and Tubby.

Of course, if a grand jury had been empanelled at the July 1974 term the April grand jury could not have been recalled after another grand jury had been empanelled at the July term because two grand juries cannot exist in a county at the same time. It naturally follows that when a term of court is convened where a grand jury is required to be drawn the old grand jury is automatically discharged and, as stated in Tubby, may only report indictments obtained in vacation and make its final report. It also follows that a circuit judge may discharge a grand jury at any time.

By way of summary, the effect of Joyce, Tubby and this case is that a grand jury empanelled may not serve after the intervention of a succeeding term of circuit court unless (1) the intervening term is...