Posey v. State

• Decision Date: 18 April 1905
• Court: Mississippi Supreme Court
• Parties: DAVID POSEY v. STATE OF MISSISSIPPI

38 So. 324

86 Miss. 141

DAVID POSEY v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

April 18, 1905

FROM the circuit court of Lincoln county, HON. MOYSE H. WILKINSON Judge.

Posey the appellant, was indicted, tried, and convicted of murder and sentenced to the penitentiary for life, from which conviction and sentence he appealed to the supreme court. The facts upon which the decision turned are stated in the opinion of the court.

Affirmed.

A. C. McNair, Y. W. McNair, and H. Cassedy, for appellant.

William Williams, attorney-general, for appellee.

[The briefs of counsel in this case failed to reach the reporter, hence a synopsis of them is not given.]

Argued orally by William Williams, attorney-general, for appellee.

OPINION

TRULY, J.

Appellant was indicted for the murder of one Benjamin Bayliss. Before arraignment he filed a motion to quash the indictment, also a plea in abatement. The demurrer of the state to the plea in abatement was sustained, and the motion to quash, after taking testimony, was overruled. These rulings of the court are mainly assigned as error on this appeal.

The facts on which the plea in abatement was founded, and which formed the basis of the motion to quash, were substantially these: Upon the convening of court for the term at which appellant was indicted, the presiding judge directed that the grand jury should consist of sixteen men, stating that the panel would be completed afterwards, directing the officers to draw the grand jurors, in conformity with the statutory provisions, from the regular venire for the week. The sixteen men so drawn were by the court, after due examination as to qualification and competency, duly and regularly impaneled, sworn, and charged, a foreman selected, and the grand jury placed in charge of a sworn bailiff. After the impaneling of the grand jury, but before the retirement of that body, two of the panel tendered excuses to the judge, which were accepted, and they relieved from service. Thereupon the judge directed the sheriff to call four named individuals from the bystanders, who, being duly examined as to competency and qualifications, and being found to possess, all necessary constitutional qualifications, were by the court sworn as members of the grand jury, and they retired and participated in all the deliberations of the grand jury. At the time the judge summoned the four bystanders to serve as grand jurors, it is averred by the appellant, and not denied by the state, that there were other members of the venire for the week who had not been examined as to their qualifications for grand-jury service, and who were subsequently impaneled as members of the petit juries for the first week of the term. It further appears that the four men secured from the bystanders, while admittedly competent and duly qualified for grand-jury service, were not among those selected and listed by the board of supervisors for jury service during the year, and that their names were neither on the list so prepared nor on the venire drawn from the jury box for service during that term of court. The correctness of the action of the trial judge in so excusing members of the grand jury, and substituting others, under the circumstances above stated, is challenged on many grounds. It is said that the jury laws expressly direct the manner in which the grand and petit jurors for the term shall be secured; that the method to be adopted in selecting the grand jurors is mandatory and binding upon the court, leaving him no discretion, and any failure to comply with the method there prescribed is fatal error. Again, it is said that the excusing from service of two members of the panel for reasons which are not shown by the record to be among those recognized by the statute as valid excuses also constitutes error, of which any person interested may at any time take advantage. The action of the court in substituting bystanders in the places of those excused is assailed as being a flagrant violation of the law, more particularly when thereby he ignored the venire comprising the names of those regularly secured for jury duty for the term, and chose others not selected or listed for jury service in the manner prescribed by law. It is also urged that the action of the court in adding to the grand jury others than those selected by lot in the statutory manner, so as to increase the panel beyond the number originally impaneled, constitutes reversible error. In this connection it is argued that while the trial judge is vested by statute with discretion, before the grand jury is drawn, to determine the number which shall constitute it for the term, this discretion once exercised, and the number once fixed, and the panel completed, he is powerless to increase the number so originally decided on, no matter what unforeseen contingency may subsequently arise. Finally, it is insisted that as the persons so placed on the panel were not drawn or listed for jury service by the board of supervisors, as provided by the statute enacted in obedience to the mandate of sec. 264, Constitution 1890, their participation in the deliberations of the grand jury was unauthorized, and vitiated all indictments presented thereby. This objection, it is urged, growing out of a violation of a constitutional provision, attacks the existence of the grand jury as a constitutional body, and such an objection cannot be waived by a party accused or cured by a legislative enactment.

It must be noted that when the two jurors who had been selected in the manner prescribed by the statute tendered their excuses, which were accepted, and they relieved from further service, this left the court without any legal grand jury. The number originally impaneled being only sixteen, when these two were excused there remained only fourteen duly constituted members of the grand jury, whereas the express terms of the statute make it necessary that the grand jury shall contain not less than fifteen. Confronted by this condition of affairs, it was the duty of the trial judge to refill the panel. The acceptance of the tendered excuses of the two jurors, in the absence of proof to the contrary, will be upheld as correct. No presumption of error will be indulged to invalidate judicial action. Cotton v. State, 31 Miss. 504; Mills v. State, 76 Md. 274 (25 A. 229); Burrell v. State, 129 Ind. 290 (28 N.E. 699); State v. Bradford, 57 N.H. 188; United States v. Jones, (D. C.), 69 F. 973; State v. Arnold, 55 Mo. 89.

The action of the court, then, in excusing the two jurors, being by presumption of law, not erroneous, the next question presented is as to the method which he should have employed in refilling the panel of the grand jury, which has thus been reduced below the minimum statutory number required. That he had the power to fill the vacancies is unquestioned. Even in the absence of express statutory authorization the presiding judge is vested with inherent power to fill vacancies; otherwise it might often happen that death or sickness of one or more members of the panel would leave the court without a legally constituted grand jury. "When the power is given to excuse a juror, the power to fill the vacancy thus occasioned, by another possessing the necessary qualifications, is also conferred by necessary implication." Burrell v. State, supra. There is no statute prescribing any definite course to be followed in procuring jurors to fill vacancies occurring in the grand jury subsequent to impaneling. No mandatory provision of law compels the court to select persons to fill vacancies from other members of the venire for the term, or from the list prepared by the board of supervisors,, or requires that they be drawn from the regular jury box of the county. Code 1892, § 2376, simply provides that if after the grand jury has been sworn, and if the members be excused by the court--thus expressly clothing the court with power in this regard--"the court shall have power to cause others to be sworn in their places." In the instant case not only was it within the power of the court to have others sworn in the place of the jurors so excused, but, as hereinbefore indicated, under the peculiar circumstances of this case it was his duty so to do, in order that the business of the court, the investigation of crimes, and the presentment of indictments should be proceeded with by a competent grand jury. The power to excuse as well as the power to fill the vacancy is granted the judge, but the reasons for which he may grant, excuses and the method in which he shall fill the vacancy are wisely submitted to his sound discretion. Having, then, the power to make substitution to fill these vacancies, and there being no statutory limitation upon the manner in which he should exercise his discretion in choosing the substitutes, was that power exhausted when the two. vacancies caused by his acceptance of the excuses tendered were filled? The number which shall constitute the grand jury is left solely to the determination of the presiding judge. It is for him to say whether that number shall be fifteen or whether it shall be any greater number, not exceeding twenty. A circuit judge at the commencement of a term may deem fifteen a sufficient number, 'from the lights then before him, for the dispatch of business, and yet, from subsequent developments during the progress of the term, be convinced that the presence of certain individuals upon the grand jury, who, by reason of their favoritism or personal predilections, might desire to screen persons guilty of a special class of crimes, would so hamper or retard the investigations of the grand jury as to practically nullify the wholesome effect of its deliberations. In such cases there is no statute which forbids the...