Lott v. State

• Decision Date: 13 December 1948
• Docket Number: 36960.
• Court: Mississippi Supreme Court
• Parties: LOTT v. STATE.

37 So.2d 782

204 Miss. 610

LOTT v. STATE.

No. 36960.

Supreme Court of Mississippi

December 13, 1948

Jesse M. Byrd, of Leakesville, Ben Stevens and Jas. H. Stevens, both of Hattiesburg, and L. Barrett Jones of Jackson, for appellant.

Greek L. Rice, Atty. Gen., by Geo. H. Ethridge Asst. Atty. Gen., for appellee.

MONTGOMERY Justice.

T. A Lott was convicted in the Circuit Court of Greene County on a charge of grand larceny and was sentenced by the court to serve a term of eighteen months in the State Penitentiary and he appeals.

After his indictment but before arraignment Lott moved to quash the entire Jury list, from which the Grand and Petit Juries had been chosen or were to be chosen for the alleged reason that the Board of Supervisors had not selected the names of said jurors in the manner required by law in that the statutes governing the selection of qualified electors as jurors, the placing of their respective names in the jury box, and the subsequent drawing of the juries were alleged not to have been complied with. There was, however, no charge of fraud.

The appellant is precluded from challenging the competency and qualifications of the Grand Jury by the terms of Section 1784, Code of 1942, which reads as follows:

'Before swearing any grand juror as such, he shall be examined by the court, on oath, touching his qualifications; and, after the grand jurors shall have been sworn and impaneled, no objection shall be raised, by plea or otherwise, to the grand jury; but the impaneling of the grand jury shall be conclusive evidence of its competency and qualifications; but any party interested may challenge or except to the array for fraud.'

In construing this section of the Code, this Court, in Reynolds v. State, 199 Miss. 409, 24 So.2d 781, 783, said:

'Therefore in our judgment, while the grand jury was improperly selected it had been impaneled when the motion to quash its indictment was filed and appellant could not thereafter be permitted to challenge its competency or qualification.'

So, here, the motion to quash, in so far as it concerns the grand jury, was made too late as the strict language of the statute that the impaneling of the Grand Jury shall be conclusive evidence of its competence and qualifications admits of no exceptions.

The motion to quash, insofar as it concerned the petit jury was timely made, as was held in Gavigan v. State, 55 Miss. 533.

Section 1766, Code of 1942, in its pertinent part, reads as follows:

'The board of supervisors at the April meeting in each year, or at a subsequent meeting if not done at the April 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 afterwards, and as a guide in making the list they shall use the registration book of voters, and shall select and list the names of qualified persons of good intelligence, sound judgment, and fair character, and shall take them as nearly as they conveniently can, from the several supervisor's districts in proportion to the number of qualified persons in each, excluding all who have served on the regular panel within two years, if there be not a deficiency of jurors. The clerk of the circuit court shall put the names from each supervisor's district in a separate box or compartment, kept from the purpose, which shall be locked and kept closed and sealed, except when juries are drawn, when the names shall be drawn from each box in regular order until a sufficient number is drawn. The board of supervisors shall cause the jury box to be emptied of all named therein, and the same to be refilled from the jury list as made by them at said meeting. If the jury box shall at any time be so exhausted of names as that a jury cannot be drawn as provided by law, then the board of supervisors may at any regular meeting make a new list of jurors in the manner herein provided.

'In order that the board of supervisors may properly perform the duties required of it by this section, it is hereby made the duty of the circuit clerk of the county and the registrar of the voters to certify to the board of supervisors during the month of March of each year under the seal of his office the number of qualified electors in each of the several supervisor's district in the county.'

Section 1772, Code of 1942, in providing the manner in which petit jurors shall be drawn, says:

'At each regular term of the circuit court, and at a special term if necessary, the judge shall draw, in open court, from the five small boxes enclosed in the jury box, slips containing the names of sixty-two jurors to serve as grand and petit jurors for the first week and thirty-six to serve as petit jurors for each subsequent week of the next succeeding term of the court, drawing the same number of slips from each and every one of the five small boxes if practicable, and he shall make and carefully preserve separate lists of the names, and shall not disclose the name of any juror so drawn; but only thirty-six names shall be drawn for each week or any term where a grand jury is not to be drawn. The slips containing the names so drawn shall be placed by the judge in envelopes, a separate one for each week, and he shall securely seal and deliber them to the clerk of the court, so marked as to indicate which contains the names of the jurors for the first and each subsequent week. If in drawing it appears that any juror drawn has died, removed or ceased to be qualified or liable to serve as a juror, the judge shall cause the slip containing the name to be destroyed, the name to be stricken from the jury list, and he shall draw another name to complete the required number.'

The petit juries were not drawn under this section but appear to have been drawn under Section 1774, Code of 1942, which is as follows:

'Whenever the jurors have not been drawn by the judge in open court, he may draw them in vacation, if convenient; and if he do not, and whenever jurors are required for a special term and the judge shall so direct, the clerks of the circuit and chancery courts and the sheriff shall, at the time they should have opened the envelopes, draw the jurors for the term of court, and make and certify lists thereof; and the clerk shall issue and deliver to the sheriff the proper venire facias.'

The principal objections urged by appellant in support of his motion are (1) that the Circuit Clerk did not, during the month of March, certify to the Board of Supervisors, under the seal of his office, the number of qualified electors in each of the several supervisor's districts in the County; (2) there was no order entered on the minutes of the Board of Supervisors adjudicating that the names of the qualified electors were placed in the respective boxes in proportion to the number of qualified electors in each district; (3) there was no order entered on the minutes of the Board of Supervisors adjudicating that the names of the qualified electors were placed in the respective boxes in proportion to the number of qualified electors in each district; (4) there was no adjudication on the Board of Supervisors' minutes to show that they excluded all persons who had served on the regular panels within two years; (5) nothing to adjudicate that the Board caused the jury box to be completely emptied before placing the new lists in them; (6) nothing to adjudicate that the Board did anything to ascertain that each person whose name was placed in the jury box was a qualified elector of good intelligence, sound judgment and fair character.

The Circuit Clerk, over the objection of appellant, and we think properly so, was permitted by the Court to testify that at the April meeting of the Board of Supervisors he certified the number of qualified electors in each of the several supervisors' districts and that, though no certificate was filed with the clerk of the board,...