Quick v. State

• Decision Date: 25 June 1923
• Docket Number: 23465
• Citation: Quick v. State, 132 Miss. 794, 96 So. 737 (Miss. 1923)
• Court: Mississippi Supreme Court
• Parties: QUICK et al. v. STATE

96 So. 737

132 Miss. 794

QUICK et al. v. STATE

No. 23465

Supreme Court of Mississippi

June 25, 1923

Division A

(Division A.) January 1, 1920

1 JURY. Court held authorized to quash jury box and panel for irregularities in selection of names.

Where a large number of persons whose names were placed in jury box had served during the two previous years and the box contained over eight hundred names contrary to Code 1906 section 2689 (Hemingway's Code, section 2181), and the names were not selected in proportion to qualified electors in each supervisor's district, it was within the trial judge's province and discretion to quash the jury box and panel drawn therefrom.

2 JURY. Quashing of jury box and panel held largely in trial court's discretion.

The quashing of the jury box and venire drawn therefrom, for gross irregularities in making up the jury box, was largely a matter within the trial court's judicial discretion.

HON. C C. MILLER, Judge.

APPEAL from Circuit court of Lauderdale county, HON. C. C. MILLER, Judge.

Johnnie Quick and another were convicted of keeping and maintaining a gaming house, and they appeal. Affirmed.

Judgment affirmed.

Parker, Snow & Snow, for appellant.

The appellants in this case indicted by the grand jury of Lauderdale county, in August, 1922, were charged jointly with unlawfully keeping and maintaining a common gaming house. At the February Term, 1923, of the circuit court of Lauderdale county, the defendants were convicted and given the maximum sentence of the law. At the opening of this term of court, and before any case had been called for trial, and before the jurors then present and waiting, had been empanelled, the district attorney and the county attorney, filed a motion before the court to quash the entire jury list, containing the names of jurors drawn for service at the present term of court, and also to quash the jury box from which said jurors names were drawn, basing the motion on the alleged illegality of the jury box from which the jury list was drawn, predicating said alleged illegality upon fraud in the selection of the names placed in the jury box by the several members of the board of supervisors. The motion to quash was sustained by the court, the judge specifically finding that there was no fraud in the selection of the jury or of the names in the jury box, but that some of the jurors had served within the two years next preceding this term of court, and that there had been more than eight hundred names placed in the jury box for the year, without an order of the presiding judge. The court then directed the sheriff to select a certain specific number of men for jury service from each beat in the county, using the poll book to select his names from. The ruling of the court was excepted to by the defendants, and a motion by them made objecting to the selecting of a jury other than from the list prepared by the board of supervisors, and also objecting to the method by which the sheriff was ordered to select the jury to try defendants. This motion was overruled by the court, to which ruling defendants excepted.

By section 2180, Hemingway's Code, the board of supervisors are required to make a selection of those from whom the jurors for the ensuing twelve months are to be selected and by this provision are the supervisors each invested with a certain amount of discretion as to the men to serve from their particular neighborhood. It is the supervisors who determine the fitness of the juror, as to his intelligence, judgment, and character, and this, we believe, as stated by this court in Cook v. State, 43 So. 620, is the only place in the law upon the subject of juries where it is given to any one to exercise judgment in the selection of jurors, this power being limited even to this one body in a very limited way. Even after giving the discretion to the board of supervisors of selecting and placing in the jury box those whom they considered fit and qualified, the legislature, to make sure there should be no hand-picking, provided for drawing by lot from that number of men recommended, just before they were to be used, enough men to act at a given term of court. By this drawing by lot the inviolate right of a fair trial by a fair jury was intended to be preserved to the litigants.

Section 2211, Hemingway's Code, providing that "All the jury provisions of law in relation to the listing, drawing, summoning and empanelling of juries are directory merely," has been under review of this court several times, and has been construed to mean that the manner of selecting the names for jury service by the board of supervisors was directory, and not mandatory. By this section then, the discretion of the board of supervisors was, in fact, enlarged so that if they made up their lists for jury service substantially according to the plan and scheme prescribed by law, their lists would be valid and lawful, and such as was intended by law for the trial of cases before our courts. Bond v. State, 91 So. 461; Simmons v. State, 68 So. 913; McVey v. State, 78 So. 150; Cook v. State, 43 So. 619; Sheppard v. State, 42 So. 544. But the trial judge found names had been listed by the board of supervisors of parties who had been called as jurors within the two years next preceding 1923, apparently contrary to section 2176, Hemingway's Code. There was no testimony, however, that any man listed by the board of supervisors had served at either of the terms of court next preceding the February, 1923, term, and we insist that said statute is directory. Even in the light of sections 2179 and 2180, Hemingway's Code, we submit that the finding of names selected by the board of supervisors, of men selected by them before, was not sufficient to warrant a quashing of the jury box, and getting rid of the men already in the court room ready for service. The Legislature seems, with care, to have deliberated over this very matter and to have intended the selection and use of such men, for it is provided in every instance that when there is a deficiency of jurors these parties, even though they have served within two years, must serve again. The law provides for twenty weeks of circuit court in this county. The terms of court regularly require a great number of jurors, to say nothing of the special venires. There was no irregularity even in the names of jurors who had served within two years being placed on the jury list by the members of the board of supervisors. If they had served on regular panels the two preceding terms they were subject to challenge for cause and if there was a deficiency of jurors, as sworn to by the supervisors, they were subject to jury duty and should have been drawn. The fact that when there was a deficiency and some of the same parties were drawn indicates the supervisors selecting them were convinced of the particular party being fitted to serve his country.

But the state relied also on the fact that the jury box contained when filled something like nine hundred names. We concede it did. This court held in Simmons v. State, 68 So. 913, the fact the jury box contained less than two hundred names was not grounds to quash the box, so we rely content upon that case. We take it to be conclusive there was no fraud. The court found, as a matter of fact, no fraud had been proved, his finding, in part, being as follows: "I do not intimate, and do not charge that the board committed a fraud in placing these names in the box, but I do say that the law has not been complied with, etc." But if there was no fraud, how could the court quash the jury box and direct his sheriff to select a jury to try the cases before the court. At the time this motion was before the court, as shown by the motion, the venire facias had been issued, and the jurors were in the court room awaiting their duties. Section 2209, Hemingway's Code, provides: "A challenge to the arrray shall not be sustained except for fraud, nor shall any venire facias, except a special venire facias in a criminal case be quashed for any cause whatever." The leading case of Cook v. State, 43 So. 622, and the case of Campbell v. State, 17 So. 441, will be found to support our contention that to warrant the court in quashing the jury box there must be a finding of fraud.

But the state contends we show no prejudice, nor that we did not have a fair jury. To that we answer, appellants were confronted by a "hand-picked" jury, by which we mean a jury picked by a single man, which man belonged to the prosecuting arm of the court. He knew the name of every man he selected before he selected him, and no doubt knew the tenor of the minds of the men he selected. The judge directed him to get a certain number of men from each beat, which was contrary to law, and these jurors were brought to try these defendants in an atmosphere charged and sur-charged with the idea of a jury selected which the state did not want, having been dismissed, and they having been sent for to take the place of those men discharged and designated as being undesirable to the district attorney and the county attorney. It was held in Eddins v. State, 70 So. 898, that every jury was not a fair and impartial jury just because the defendant was unable to show specifically wherein he had been prejudiced by any particular juror on his panel. See also Magnus v. State, 60 So. 8; Miller v. State, 84 So. 161; Lewis v. State, 45 So. 360. Further, there being no jury before the court, the court could not of its own motion, organize a jury, save in the special cases provided for by statute. 1 Chitty's Cr. Law, 518; Bac. Abr., tit. "Jury," C. & D.; Williams v. The Commonwealth, 91 Penn. State, 493; Rogers v. State, 33 Ind. 543; Bradley v. State, 45 Ind. 67; Randron v. New Orleans, 15 La. 160; ...