Moon v. State
| Decision Date | 01 June 1936 |
| Docket Number | 32087 |
| Court | Mississippi Supreme Court |
| Parties | MOON v. STATE |
(En Bane.)
1 JURY.
Motion to quash special venire on ground that it should have been summoned from new jury list held properly overruled where new list had been in jury box less than thirty days before special venire was granted and trial had (Code 1930, secs 2033, 2062).
2 JURY.
Special venire will not be quashed except for fraud or total departure from procedure laid down (Code 1930, sec. 2062).
3. CRIMINAL LAW.
In murder prosecution, instruction that if defendant and another went to certain store with common design to rob deceased that defendant should be found guilty although he did not personally fire fatal shot fired while they were engaged in such design held proper when taken in connection with all instructions.
4. CRIMINAL LAW.
Where defendant's codefendant in murder prosecution was first tried and convicted, reference to such conviction by county attorney in closing argument held cured of any prejudicial effect by instruction to jury to disregard statement.
HON WM. A. ALCORN, Judge.
APPEAL from circuit court of Coahoma county HON. WM. A. ALCORN, Judge.
Roosevelt Moon was convicted of murder, and he appeals. Affirmed.
Affirmed.
Semmes Luckett, of Greenwood, for appellant.
The court erred in overruling appellant's first motion to quash the special venire.
On October 10th, after the defendant had been arraigned and plead guilty, the attorney for the defendant moved the court for a special venire. The court sustained the motion and under the provisions of section 2061 of the Code of 1930, directed the sheriff to summon fifty jurors from the body of the county to serve as such special venire. However, two days prior thereto. on the 8th day of October, the Board of Supervisors of Coahoma County, a acting under the provisions of section 2033 of the Code of 1930, in order to refill the jury box exhausted by the quashing of the same, on October 3, 1935, had made a new list of jurors in the manner provided for in said statute. A certified copy of that list had been, on the following day, October 9th, delivered by the clerk of the Board of Supervisors to the clerk of the circuit court, and had been, by the latter, placed in his safe, where it remained until the hearing on the motion on October 15th. There was a jury box and it had not been mislaid.
Sections 2061, 2033, Code of 1930.
Section 2061, Code of 1930, guarantees to every person charged with a capital crime, upon his demand, a special venire. It guarantees to him that such special venire, except in the instances mentioned in the statute, will be drawn, in open court, from the jury box. The instances mentioned in the statute, which excuse the drawing of the special venire from the jury box and authorize the trial court to direct the sheriff to select the same from the body of the county, are these: when there is no jury box, or the same has been mislaid, or the names therein have been exhausted. When there is a jury box with names therein the special venire must be drawn therefrom.
The trial court held that there were no names in the jury box on October 10th, the day on which it ordered the special venire from the body of the county. I submit that it was in error in so holding.
If there was a jury box from which the special venire could have been drawn, then the failure of the trial court to draw the special venire from the box constituted reversible error.
Lee v. State, 138 Miss. 474, 103 So. 233.
The court erred in denying appellant's second motion to quash the special venire.
Appellant's second motion to quash the special venire asserted, as ground therefor, that the sheriff who selected the same, in selecting the same, did so in a manner contrary to law. In support thereof, he showed, by the sheriff himself, that he, the sheriff, in selecting the special venire, took the names thereof from the poll books of the county without ascertaining whether the persons so selected were qualified jurors or not.
The court erred in denying appellant's third motion to quash the special venire.
Appellant's third motion to quash the special venire was based on the fact that the sheriff of the county, the officer who personally selected the special venire from the body of the county, actively assisted the district attorney in the selection of the trial jury, and the employment by the court of one Frank Hamilton, an important witness for the State, in relaying word to the several veniremen of their call to the jury box.
The court erred in granting the state its second instruction.
The state seeks, by that instruction, to secure a conviction of the appellant, even though the actual murder of J. C. Parker was committed by Fedro Pearson and not by appellant. In other words, it seeks a conviction of appellant either as a principal in the second degree or as an accessory before the fact. In order to return such a conviction, the jury was instructed by the court that they need believe only two things; (1) that appellant and Fedro Pearson, both having a common design to rob J. C. Parker, went to the store of J. C. Parker for the purpose of robbery; and (2) that Fedro Pearson, while engaged in robbing J. C. Parker, shot and killed J. C. Parker.
I submit that the crime committed by Fedro Pearson cannot be imputed to appellant merely because he formed, with Fedro Pearson, a design to rob J. C. Parker and accompanied Fedro Pearson to the store of J. C. Parker.
Before one can be convicted of a crime actually committed by another, it is necessary that it be shown that he or she aided, assisted or abetted the one who actually committed the crime. It is not sufficient that he or she be merely present.
Crawford v. State, 97 So. 534, 133 Miss. 147; Bruce v. State, 103 So. 133, 138 Miss. 382.
The instruction complained of does not require the jury to believe that the appellant was "engaged" in the commission of the crime of robbery. It advised the jury that the mere sharing of a common design to rob and of going to the scene of the robbery was sufficient to convict the appellant of the crime of murder. Such facts might be sufficient to convict the appellant of robbery, but they certainly are not sufficient to convict one of a crime which grew out of the robbery, of a crime of which the robbery was only one of the two major elements.
Wm. H, Maynard, Assistant Attorney-General, for the state.
The court properly denied appellant's motion to quash the second indictment.
The court properly overruled appellant's first motion to quash the special venire.
Peck Furniture Co. v. Greer, 146 So. 311; Sec. 2061, par. 2, Code of 1930.
Appellant's a argument that the judge should have directed the special venire to be drawn from a list which had been made up by the board of supervisors cannot prevail.
Sections 2033 and 2035, Code of 1930.
In the present case, there is no showing other than in the stenographer's notes, that the list which was purported to have been made by the board of supervisors was ever delivered to the circuit clerk, nor is any showing made as to what disposition was made of said list.
Nelson v. State, 160 Miss. 401, 133 So. 248; Section 2064, Code of 1930.
Our case is analogous to the Nelson case, supra, for the reason that there is no showing in the case at hand that the list which was purported to have been made by the board of supervisors was ever transmitted to the circuit clerk. It was likewise decided in the case of Campbell v. State, 17 So. 441, that the venire in a criminal case will be quashed because the jury was not drawn from a legal box prepared by the board of supervisors.
It has been decided by this court, in construing section 2062 of the 1930 Code that a venire will not be quashed except for fraud.
Bond v. State, 128 Miss. 792, 91 So. 461; Harris v. State, 155 Miss. 794, 125 So. 253.
The lower court properly overruled appellant's motion to quash the special venire.
Arnold v. State, 171 Miss. 164, 167 So. 247.
The lower court...
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