Lewis v. State

• Decision Date: 08 April 1929
• Docket Number: 27839
• Citation: 121 So. 493,153 Miss. 759
• Court: Mississippi Supreme Court
• Parties: LEWIS v. STATE. [*]

121 So. 493

153 Miss. 759

LEWIS v. STATE. ^[*]

No. 27839

Supreme Court of Mississippi

April 8, 1929

(En Banc.)

1. HABEAS CORPUS. Where trial court had jurisdiction, its record on trial imported verity, and could not be contradicted by parol in habeas corpus proceeding to show one of jurors was not of county of offense (Constitution 1890, section 26).

Where trial court had jurisdiction of defendant and of crime of murder, its record made on the trial imported verity, and could not be contradicted by parol in habeas corpus proceeding by showing that one of jurors did not live in county where offense was committed, as required by Constitution 1890, section 26.

2. HABEAS CORPUS. Court's decision on qualifications of jurors in criminal case is open to review only on appeal (Constitution 1890, section 26).

Court's decision in criminal case on qualifications of jurors under Constitution 1890, section 26, is open to review only on appeal to supreme court.

3. HABEAS CORPUS. That defendant did not learn of disqualification of juror until after appeal had been decided did not entitle him to have question considered in habeas corpus proceeding.

That defendant did not learn of disqualification of juror in murder case until after his appeal had been decided by supreme court did not entitle him to have question considered in habeas corpus proceeding.

4. HABEAS CORPUS. Granting of writ of habeas corpus on application therefor is not mandatory (Hemingway's Code 1927, sections 2149, 2150).

Granting of writ of habeas corpus on an application therefor is not mandatory under Code 1906, sections 2449, 2450 (Hemingway's Code 1927, sections 2149, 2150).

HON. T P. DALE, Chancellor.

APPEAL from circuit court of Simpson county, HON. T. P. DALE Chancellor.

Application for habeas corpus by R. V. Lewis. The writ was granted, but petitioner was remanded to custody, and he appeals. Affirmed.

See also, 118 So. 708.

Affirmed.

Hilton & Hilton, James B. Sykes and Broom & Gober, for appellant.

When a judgment is a nullity it should be set aside. In this case the defendant should not be discharged from the custody of the sheriff but should be detained for trial on a pending cause. We take the emphatic position, that in a proceeding of this character where it is alleged and the proof shows, that the judgment on which the petitioner is held, is void, that it can be collaterally attacked, and a writ of habeas corpus is the proper procedure to redress this wrong. 12 R. C. L. 1185; Scott v. State, 70 Miss. 247; Ex parte Phillips, 57 Miss. 357; McHenry v. State, 91 Miss. 562; Ex parte Burden, 92 Miss. 14; Ex parte Moody, 104 Miss. 836. In State v. Chambliss, 107 S. R. 200, we find a full discussion of when a habeas corpus will lie to set aside the judgment of another court, and when a judgment may be collaterally attacked. This is a well-reasoned case, and after a full discussion of the writ of habeas corpus to set aside a void judgment, sums it up as follows: "Whenever a court makes an order beyond its power restraining the liberty of the citizens, it may be collaterally attacked, although the court had general jurisdiction, of the subject of litigation and of the parties." Citing McHenry v. State, 91 Miss. 562. This case sets at rest the question of right to seek, by writ of habeas corpus, relief of such person from a conviction under a void judgment.

The validity or invalidity of the judgment, under which appellant stands convicted, and from which judgment he seeks redress, depends upon the construction of sections 264 and 26 of the Mississippi Constitution. We appreciate the fact that sec. 264 of the Constitution by its provisions cures the verdict of the jury, where the verdict was rendered by a jury that contained a juror who was not a qualified elector and not able to read and write. This section of the Constitution has been passed on many times. Bowman v. State, 106 S. R. 264, citing the following cases: Fulcher v. State, 82 Miss. 630; Tolbert v. State, 71 Miss. 180; Posey v. State, 86 Miss. 151. There is a very interesting differentiation in the reasoning and the rule announced in this line of cases, and the question we raise in this case. For instance in the Fulcher case the question, raised after verdict, was that a juror was not a qualified voter, but an unnaturalized foreigner. Yet the record shows that the juror was of the county where the crime was committed. The same question as to a juror being a qualified elector was involved in the Tolbert case. And it does appear that the juror, to whom the objection was made, was of the county where the crime was committed. The same is true as to the Posey case. In fact in all the cases that we have been able to find in our state, there is not a single case which construes sec. 26 of the Constitution. Section 264 is but supplementary to section 26. That is to say, sec. 26, a part of the Bill of Rights, provides that a defendant, among other rights, must have a speedy and public trial by an impartial jury of the county where the offense was committed, and sec. 264, supplements this provision by further providing that such jury of the county where the crime was committed must have the qualifications to be able to read and write and a qualified elector of such county. If timely objection was made, not only must the juror be of the county where the crime was committed, but must be a qualified elector and able to read and write. If timely objection is not made, for any reason, if the juror is not qualified elector, nor able to read and write, sec. 264 cures such defects in his qualifications, but there is no constitutional curative provision as against the constitutional requirement of sec. 26 that the juror must be of such county. It surely cannot be maintained that the curative effect of sec. 264 reaches back to sec. 26, when sec. 264 makes no such reference or in any wise alludes to the constitutional rights and privileges of the defendant under sec. 26. It is stated in a North Carolina case, State v. Rogers, 46 L. R. A. (N. S.) 38, that which is as follows: "One who pleads 'not guilty' to an accusation of murder is entitled to be tried by a jury of twelve men, which he cannot waive even by consenting to proceed with eleven in the jury box when one is found mentally unfit." Jefferies v. State, 74 Miss. 675. We see here the court invoking the constitutional rights guaranteed to the defendant under sec. 26 of the Constitution. For a strict adherence to the Constitution by our courts see White v. State, 85 Miss. 208; State v. Powell, 11 L. R. A. (Cal.) 75. In Shaffer v. State, 1 How. 238, the venire facias directed the sheriff to "summons thirty-six good and lawful men of his county and who are in nowise of kin to James Shaffer, and reside as near as may be to the place where the murder was committed." The point raised by defendant was that the directions to summons the jury, "as near as may be to the place of the offense, was an abridgment of the prisoner's constitutional right to be tried by a jury of the county." In a most interesting opinion, Judge SHARKEY, said, quoting from his opinion: "The taking of our citizens from their homes and friends to be tried by strangers without the means of a fair investigation have no doubt due weight in the constitutional arrangement. It was made in the spirit of the common law, to secure to the accused a trial by his neighbor, by constituting the citizens of the county as triers, and excluding such as were of a different county." See Scott v. State, 70 Miss. 247; Ex parte Phillips, 57 Miss. 357; Alfred v. State, 33 Miss. 296; Lindsley v. Coahoma County, 69 Miss. 815; Hinton v. Perry County, 84 Miss. 536.

When J. J. White was accepted by an order of the circuit court, as shown by this record, as a juror, a resident of Covington county, Mississippi, the court made an order that he had no power to make, insofar as trying appellant. And the trial of appellant by a jury, on which sat White, was an infringement upon the constitutional right of appellant under section 26. The circuit court of Simpson county had no jurisdiction of appellant, whereby it could impose a death sentence upon the verdict rendered, with juror White sitting thereon. It is true that the circuit court had jurisdiction of the subject-matter, that is the new trial of appellant upon a charge of murder, and had jurisdiction of the appellant, but it had no jurisdiction to make an order sentencing appellant to death, because the court's jurisdiction had been broken and lost, because of the abridgment of the right of appellant to a trial by a jury of his county. It is no answer to say that White voted in Simpson county and claimed his residence in Simpson county, because that is no test. The actual fact of residence must control and not what an individual may desire or say. Neither is it any answer to say that J. J. White only lived two hundred yards over in Covington county from the Covington county line. Just as our court does not measure time by parts of days, so the law does not take a cognizance of distance from a county. It makes no difference whether it is ten yards, two hundred yards, a mile or fifty miles. The law has said that the county line is the boundary and it has provided means and methods of defining county lines

J. A. Lauderdale, Assistant Attorney-General, for the state.

The judgment of the circuit court' imports absolute verity and cannot be contradicted in habeas corpus proceedings. In Murrah v. State, 51 Miss. 652, the oral testimony showed that there was no jury. The record showed that there was a good and lawful jury. The court held that the record controlled. In Scott v. State, 70 Miss. 247, the record showed that there was a trial by eleven men as jurors. The oral...