Riley v. State, 37339
| Citation | 44 So.2d 455,208 Miss. 336 |
| Decision Date | 13 February 1950 |
| Docket Number | No. 37339,37339 |
| Court | United States State Supreme Court of Mississippi |
| Parties | RILEY et al. v. STATE. |
Morgan, Thornton & Morgan, Kosciusko for appellant.
Greek L. Rice, Attorney General, Geo. H. Ethridge, Jackson, for appellee.
Bud Edd Riley and his son Robert Lee Riley were jointly indicted, tried and convicted of the murder of Noony Wilder and the jury fixed their punishment at imprisonment for life in the state penitentiary, from which they both appeal.
Prior to the trial in the lower court appellants requested a special venire which was granted. Upon examination of the jury box it was discovered that the same had been exhausted in the selection of the grand jury and the regular panels of the petit jury. Thereupon pursuant to the provisions of Section 1795 of the Mississippi Code of 1942 the trial court ordered a special venire facias to be issued by the clerk, directing the sheriff to summon 75 jurors. The court orally directed the sheriff, in the presence of appellants and their counsel, to select these names from the poll books of the county, beginning with district 1 and continuing, precinct by precinct, and district by district, throughout the county, drawing every fiftieth name, but to omit the selection of persons known to be out of the county, or sick, or a school bus driver under bond, or suffering from some other prima facie disqualification for jury service, and then to select the name next above or below that of such disqualified person. The sheriff, however, did not follow precisely the procedure which had been suggested by the court and gave as his reason for departure therefrom that the time was getting short and it was necessary for him to select the names as quickly as possible in order to obtain service of process upon the prospective jurors and then serve a copy of the writ with his return for the full day provided by statute upon appellants or their attorneys.
Appellants filed a motion to quash the special venire so selected and said motion was overruled, the court stating into the record at the time that he was satisfied that the statute had been fully complied with and that a fair and impartial panel had been summoned for the trial. This action of the trial court is assigned as error. Section 1796 of the 1942 Code provides 'A challenge to the array 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.' In numerous cases this court has held that a special venire will not be quashed except for fraud or a total departure from the procedure laid down by the statute. Harris v. State, 155 Miss. 794, 125 So. 253; Nelson v. State, 160 Miss. 401, 133 So. 248; Bond v. State, 128 Miss. 792, 91 So. 461; Arnold v. State, 171 Miss. 164, 157 So. 247; Moon v. State, 176 Miss. 72, 168 So. 476; Dampier v. State, Misc., 31 So.2d 115, not reported in the State Reports. See also West v. State, 80 Miss. 710, 32 So. 298. Here there was no total departure from the statute nor is there any suggestion of fraud reflected by the record. Consequently this assignment is without merit.
Appellants next argue that they were each separately entitled to a directed verdict. The evidence discloses that this killing occurred on the main street of the town of Sallis as about 4 or 5 o'clock on a Sunday afternoon. On the previous day there had been some kind of difficulty between the deceased and one of the sons of appellant Bud Edd Riley, as a result of which this son had jumped from a bridge and injured his hand. On Sunday the appellant Bud Edd Riley armed himself with a pistol, a rifle and a shot gun, and went to Sallis and there encountered the deceased. The appellant Robert Lee Riley had walked to Sallis and was present at the time of the difficulty. The deceased was slain by a...
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...See Pearson v. State, 176 Miss. 9, 167 So. 644 (1936); Whitehead v. State, 97 Miss. 537, 52 So. 259 (1910). In Riley v. State, 208 Miss. 336, 44 So.2d 455 (1950), this Court sustained the action of the trial court in ordering a venire when the jury list had been exhausted, and where it was ......
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