Sanders v. State, 35867.

• Court: Mississippi Supreme Court
• Citation: 198 Miss. 587,22 So.2d 500
• Docket Number: 35867.
• Parties: SANDERS v. STATE.
• Decision Date: 11 June 1945

22 So.2d 500

198 Miss. 587

SANDERS
v.
STATE.

No. 35867.

Supreme Court of Mississippi

June 11, 1945

[198 Miss. 588] V. H. Torrey, of Meadville, for appellant.

[198 Miss. 590] Greek L. Rice, Atty. Gen., and Geo. H. Ethridge, Asst. Atty. Gen., for appellee.

[198 Miss. 592] McGEHEE, Justice.

The appeal here is from a conviction on the charge of murder, and for which crime the appellant was sentenced to suffer the death penalty. The homicide occurred in the upper compartment of the county jail about one week prior to the convening of the grand jury which returned the indictment herein. The victim, who was the only fellow prisoner of the accused, was beaten to death with an iron bar which had been used as a lever to throw the locks and bar the doors of the jail cells. But we deem it unnecessary to make a full statement of all the facts in connection with the killing, for the reason that we do not reach the merits of the case in determining whether [198 Miss. 593] or not this conviction can be permitted to stand under the circumstances hereinafter set forth.

A motion to quash the indictment was timely filed and presented on behalf of the defendant, the main ground thereof being that in the absence of the District Attorney, who was detained at home for the first three days of the court term on account of the serious illness of a member of his family due to a recent surgical operation, the circuit judge, when delivering his charge to the grand jury (and presumably in the poresence of the petit jurors who were waiting to be empaneled) explained the circumstances of the District Attorney's absence and informed the grand jurors that he would perform the duties of such office pending his arrival at court; and it was further stated in the motion that the Circuit Judge did go into the grand jury room, 'question the witnesses, and generally perform the duties of the District Attorney until this indictment was [22 So.2d 501] returned against the defendant'. It is not charged that the Judge consciously undertook to improperly influence the grand jurors to indict this defendant, but that what actually transpired had the effect of rendering the indictment void.

Upon the presentation of the motion to quash, the Circuit Judge dictated into the record the following statement:

'On Sunday afternoon before the court convened, the District Attorney called me by telephone telling me that a member of his family was quite ill, had just had an operation and that his presence with that member of his family would be needed for the next several days and it would be next to impossible for him to be in court Moday, Tuesday and Wednesday. Whereupon, I told him that I would advise the grand jury and would send him notes from which he might draw and sign indictments, and that when the court did convene on Monday morning I made statements to this effect to the grand jury and I did go back in the grand jury room after they had organized; I did run over the docket with them and [198 Miss. 594] did ask them to take this case up early in their session in order that the trial might be expedited, should they indict, it being the only case on the grand jury docket wherein the defendant was confined in the county jail. I was in the grand jury room when the sheriff came in and exhibited to the jury the weapon used in this homicide, and, also, the weapon used in the attempt to break jail after the murder was committed and heard some of the sheriff's testimony. I took particular pains not to express an opinion of my own as to what their presentment should be or what punishment would be warranted under the evidence that they might find. I also took particular pains not to be in the grand jury room when they discussed the evidence put before them or when voting upon any indictments whatsoever.'

No further evidence at all germane to the issue raised by the motion to quash the indictment was introduced thereon. Nor was there any formal order taken to show that the same was overruled. But we are of the opinion that the foregoing statement by the Circuit Judge is sufficient to constitute an adverse ruling on the motion when considered in connection with the fact that the court then immediately proceeded to try the case on its merits under the indictment complained of.

It will be assumed, if at all material, that the attorney was not appointed to represent the accused until after the indictment was found, and that prior thereto no opportunity was afforded to object to the organization of the grand jury on the ground that the District Attorney, or a District Attorney pro tem. whose appointment is provided for, if not required, under such circumstances by Section 3924, Code 1942, was not present to advise the grand jurors as to the competency and legal sufficiency of any evidence that might be heard by them in support of a charge against him; nor was there a waiver of any other right that the accused may have had in the premises.

[198 Miss. 595] However, we shall limit this decision to the main ground upon which the validity of the indictment is challenged--the presence of the Circuit Judge in the grand jury room on the occasion referred to in his statement hereinbefore quoted.

It is to be conceded in the instant case that the action of the Circuit Judge was actuated by the best of motives, out of a desire that the District Attorney should feel free to remain with his family as long as his presence at home was needed, and without experiencing any anxiety as to whether the work of the court was being seriously impeded by his...