Lee v. State

• Decision Date: 23 March 1925
• Docket Number: 24160
• Citation: 138 Miss. 474,103 So. 233
• Court: Mississippi Supreme Court
• Parties: LEE v. STATE. [*]

103 So. 233

138 Miss. 474

LEE v. STATE. ^[*]

No. 24160

Supreme Court of Mississippi

March 23, 1925

(In Banc.)

1. JURY. Special venire in capital case drawn more than thirty days after preparation of list of jurors should be drawn from jury boxes.

Section 2688, Code of 1906, section 2180, Hemingway's Code provides, among other things, that "the board of supervisors, at the first meeting in each year, or at a subsequent meeting if not done at the first meeting, shall select and make a list of persons to serve as jurors in the circuit court for the twelve months beginning more than thirty days afterward." The board of supervisors on December 10, 1923, at its regular meeting prepared the jury list in accordance with this statute. The next term of the circuit court convened on January 7, 1924, less than thirty days from the preparation of the list. A special venire was awarded at that term of court in a capital case and drawn on January 16, 1924, more than thirty days after the preparation of the list. The defendant demanded that the special venire be drawn from the list in the jury boxes. The court over his objection ordered a special venire facias for fifty men to be summoned from the body of the county. Held, the special venire should have been drawn from the jury boxes, more than thirty days having elapsed since the preparation of the jury list by the board of supervisors and the drawing of the special venire, which is the test.

2 JURY. Denial of right of one accused of capital offense to have jury drawn from jury boxes not cured by statute.

Under section 2715, Code of 1906, section 2208, Hemingway's Code, a defendant in a capital case has the right to demand a special venire to be drawn "in open court, from the jury box,... and in the event that there should be no such box, or the same should be mislaid, or the names therein have been exhausted, then the court may order a special venire facias." This right of a defendant in a capital case is a substantial valuable right which cannot be denied him by the court. And where the court refuses at the request of the defendant to draw the special venire from the jury boxes the error is not cured by section 2718, Code of 1906, section 2211, Hemingway's Code, declaring the jury laws merely directory.

3 HOMICIDE. Charge that if accused armed himself and, in pursuance of intent to provoke quarrel and kill, killed deceased, he could not claim self-defense, not based on evidence, was erroneous.

In a capital case where there was no evidence to show that defendant armed himself with a deadly weapon with a view of provoking a difficulty with the deceased with intent to kill and murder him with such deadly weapon, it was error for the court to charge the jury that if he so armed himself, and in pursuance of such intent killed the deceased, he was cut off from the right of self-defense; there being no evidence upon which to base such an instruction.

4. CRIMINAL LAW. Indictment and information. Error in initials of accused in indictment held harmless, although amendment was not made.

Defendant in a capital case whose name was W. J. Lee was indicted under the name of W. L. Lee. The evidence showed without conflict that the defendant was the person intended---that he was not misled by the mistake in initials in the indictment. Under section 1508, Code of 1906, section 1266, Hemingway's Code, which provides, among other things, that where there is a variance between indictment and the evidence "in the Christian name or surname or both or other description whatever of any person whatsoever therein named or described," such defect was amendable. Held, error was harmless, although the amendment was not made.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

W. J. Lee was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

Currie & Smith, Geo. W. Currie and E. L. Wingo, for appellant.

I. The court erred in refusing to draw a special venire from the jury boxes and in ordering the sheriff to select a venire without respect to the jury boxes. On the return date of the venire the defendant, before any of the venire was accepted, sworn or impaneled, made a motion to quash the venire and objected to proceeding with the trial, because the defendant insisted that the venire should have been drawn from the boxes, while the court was of opinion that it should not.

It appears from the minutes of the court that the board of supervisors had failed to fill the jury boxes more than thirty days next preceding the opening day of the term of court. The defendant objected to the manner of drawing the venire before the commencement of the drawing, and further moved to quash the venire before it was accepted, sworn or impaneled.

It is further shown that the jury boxes were filled by the board of supervisors on December 10, 1923, at a regular meeting of the board of supervisors as appears from the minutes of the board, and that the board placed in the jury boxes the names of jurors and filed a copy with the clerk, and that the names were in the jury boxes on the date of the drawing of the special venire.

The court was of opinion that it had no right to draw this special venire on January 16, 1924, from the jury boxes, because these boxes were not filled more than thirty days before the opening day of court, which was January 7, 1924. However, the court found that the jury boxes were filled more than thirty days before the drawing of a special venire in this cause.

Under previous statutes there may have been some question as to whether a jury could be selected from a jury box which had not been filled thirty days or more before the opening day of the court, but we submit that under our present statutes the thirty day requirement has reference to the date of the trial and not the opening day of the court. Section 2688, Code of 1906, provides how the list of jurors shall be procured. This statute does not require that the jury boxes shall be sealed thirty days before the opening day of a court, but it refers specifically to the time within which the jury boxes must be used and that time is said by the statute to be "the twelve months beginning more than thirty days afterwards."

Section 2714, Code of 1906, provides when the court may order jurors drawn and summoned. This statute, itself, shows that the court has no right to draw and summon jurors unless it appears "that jurors have not been drawn or summoned for the term or any part thereof." This specifically indicates that the jury boxes may be used for part of a term, even though they are not under the law eligible for the entire term, and this harmonizes with the "twelve months" period mentioned in section 2688.

Section 2715, Code of 1906, is with reference to a special venire in capital cases and it provides that the "jury shall be drawn in open court from the jury boxes." Under this statute "the court has no right to disregard the jury boxes and may not order a venire in any other manner except in the event that there should be no such box; or the same should be mislaid, or the names therein have been exhausted." We, therefore, submit that the court erred in the manner and method of selecting a special venire and in the directions given the sheriff with respect to selecting and summoning the jurors.

These objections were seasonably raised and we, therefore, submit that the cause should be reversed. State v. Forbes, 98 So. 844.

We further submit that the proceedings in the lower court are erroneous, because the defendant was indicted as W. L. Lee and the testimony shows that his name is W. J. Lee. It was a material defense which was not the subject of amendment. Further that the record of the proceedings does not show any sufficient or proper amendment so as to conform the indictment to the proof, even though the court had authority to grant such an amendment.

E. C. Sharp, Assistant Attorney-General, for the state.

The chief objection of appellant is to the action of the court in not sustaining the motion to quash the special venire because it was not drawn from the jury box in open court as provided by section 2208, Hemingway's Code, being section 2715, Code of 1906. See section 2211, Hemingway's Code and Head v. State, 44 Miss. 731; Buchanan v. State, 84 Miss. 332; Walford v. State, 106 Miss. 19; Ferguson v. State, 107 Miss. 559; Haney v. State, 129 Miss. 486, 92 So. 627.

In the case at bar the appellant exhausted only five of his peremptory charges. Therefore, it is to be presumed that the jury as impaneled was composed of competent, fair and impartial jurors. Simmons v. State, 109 Miss. 605; McVey v. State, 117 Miss. 243.

Argued orally by G. W. Currie, for appellant, and M. Bryan, Assistant Attorney-General, for the State.

OPINION

ANDERSON, J.

Appellant, W. J. Lee, was indicted, tried and convicted in the circuit court of Forrest county of the crime of murder and sentenced to the penitentiary for life. From that judgment he prosecutes this appeal.

Appellant was awarded a special venire. Over his objection the clerk by order of the court issued a special venire facias to the sheriff for fifty men. Appellant insisted that a special venire be drawn from the jury boxes prepared by the board of supervisors under section 2688, Code of 1906, section 2180 Hemingway's Code. The court refused to draw the special venire from the jury boxes because the jury list therein had been prepared by the board of supervisors less than thirty days before the convening of the term of court at which appellant was tried; the court being of opinion that the list for that reason could not be used. The board of supervisors at its regular December meeting, 1923,...