Nail v. State

• Decision Date: 11 October 1892
• Citation: 70 Miss. 32,11 So. 793
• Court: Mississippi Supreme Court
• Parties: GEORGE NAIL v. THE STATE

11 So. 793

70 Miss. 32

GEORGE NAIL v. THE STATE

Supreme Court of Mississippi

October 11, 1892

FROM the circuit court of Warren county, HON. J. D. GILLAND Judge.

The case is stated in the opinion.

Judgment reversed and cause remanded.

Marshall & Vollor, for the appellant.

Section 264 of the constitution, was not meant to allow a jury to be made up of incompetent jurors over the challenges of the accused. Its true meaning is that, if a party accepts or fails to object to an incompetent juror, he cannot, after verdict, raise the objection. Such a construction is the natural one, in view of the old law, the mischief and the remedy. See Painter v. Trotter, 10 Smed. & M., 537; Martin v. O'Brien, 34 Miss. 21; Shelton v Baldwin, 26 Ib., 439; Ingraham v. Speed, 30 Ib., 410; Read v. Manning, Ib., 308; Olive v Walton, 33 Ib., 103. The accused promptly exercised his right to object to the incompetent jurors, and was compelled to proceed to trial with them on the panel.

It was necessary that the jurors be qualified electors--not qualified at the time of the preceding election, but at the time of the trial. Surely, if a special election were then taking place, men who had not paid their poll-tax for the preceding year could not vote.

It was error to give the fourth instruction for the state. If the jury is not circumscribed or confined to the testimony of witnesses, when the only evidence in the case is that given by witnesses, it could act on evidence not before it, and which could not be in the record on appeal.

T. M. Miller, attorney-general, for the state.

1. It may be admitted that the court erred in refusing to set aside the jurors, but, by the plain letter of the constitution, the absence of the qualifications prescribed for jurors by the constitution shall not vitiate the verdict. The court cannot depart from the plain language of that instrument. Section 264 was intended either as directory to the legislature and the courts, or to discredit in the community persons neglecting civil and political duties.

2. The objection to the fourth instruction is fanciful. If it stood alone, it could not mislead. It plainly meant to tell the jury it could consider facts and circumstances in determining whether a conspiracy existed. It could only mean the circumstances surrounding the case, as made by the witnesses.

OPINION

COOPER, J.

The appellant, together with Lige Bennett, alias Charles Wilson, and Louis L. Smith, was indicted for the crime of wrecking a train, and, a severance having been granted, the appellant was tried alone, and convicted, and now prosecutes his appeal.

The first error assigned is upon the action of the court in holding certain jurors to be qualified. A special bill of exceptions was reserved, from which it appears that, upon the examination of the jurors, upon their voir dire, "it was proven that M. J. Feeney, Jake Lowenberg and Tom Henderson had not paid their poll-tax for the year 1891, and that T. J. O'Dell, T. R. Brady and Tom Stafford had not paid their poll-tax for the year 1891 until after February 1, 1892, all those parties being legally and justly due the state the said poll-taxes, and not being exempt therefrom by any legal disability, and having had an opportunity to pay the same. The said jurors were duly qualified and registered electors under the registration of 1891, but were not registered under the registration of 1892, which is not yet completed according to law.

Upon these facts, the court held the jurors to be qualified, to which the defendant excepted.

Appellant contends that, at the date of the ruling excepted to--June 21, 1892--the jurors were disqualified, under section 264 of the constitution, which declares that "no person shall be a grand or petit juror unless a qualified elector, and able to read and write; but the want of any such qualification in any juror shall not vitiate any indictment or verdict. The legislature shall provide, by law, for procuring a list of persons so qualified, and the drawing therefrom of grand and petit jurors for each term of the circuit court."

The constitution became operative November 1, 1890, subject to the following limitations:

1. It was controlled until January 1, 1891, by all existing laws repugnant to the provisions of sections 240 to 253, inclusive.

2. It was controlled until October 1, 1891, by all existing laws repugnant to sections 254 to 256, inclusive.

3. It was controlled until April 1, 1892, by all other existing and repugnant laws, except those repugnant to--

(a) The ordinances of the convention;

(b) The provisions of section 183;

(c) The provisions of sections 223 to 226, inclusive.

Section 241 declares who are qualified electors. It is as follows:

"Every male inhabitant of this state, except idiots, insane persons and Indians not taxed, who is a citizen of the United States, twenty-one years old and upwards, who has resided in this state two years, and one year in the election district, or in the incorporated city or town in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy, and who has paid, on or before the first day of February of the year in which he shall offer to vote, all taxes which may have been legally required of him, and which he has had an opportunity of paying according to law, for the two preceding years, and who shall produce to the officers holding the election satisfactory evidence that he has paid said taxes, is declared to be a qualified elector; but any minister of the gospel in charge of an organized church, shall be entitled to vote after six months' residence in the election district, if otherwise qualified."

Looking to the code of 1880, we find that, by section 1661, it was declared that "all male citizens of the United States and not being under the age of twenty-one years, nor over the age of sixty years, and not having been convicted of any infamous crime, shall be qualified to serve as jurors within the...