Scott v. State

• Decision Date: 14 May 1892
• Citation: 11 So. 657,70 Miss. 247
• Court: Mississippi Supreme Court
• Parties: SIDNEY SCOTT v. THE STATE

11 So. 657

70 Miss. 247

SIDNEY SCOTT v. THE STATE

Supreme Court of Mississippi

May 14, 1892

October 1892

APPEAL from the judgment of HON. J. D. GILLAND, Circuit Judge, on habeas corpus.

The opinion states the case.

Judgment reversed.

Pegram & Banks, for appellant.

Since the record affirmatively shows that the jury consisted of only eleven men, the relator was entitled, under the constitution, to his discharge.

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

The writ of habeas corpus cannot be made to serve the purpose of a writ of error. Freeman on Judgments, 620.

On appeal, in the absence of a showing to the contrary, and since it is not necessary that the names of the jurors should be set out, it will be presumed that the enumeration of only eleven names was a clerical error. Code 1880, § 1433. The effect of this statute is a presumption that all things were rightly done. Ex parte Phillips, 57 Miss. 357; Spivey v. State, 58 Ib., 743.

OPINION

WOODS, J.

The petition of relator avers that he is in the custody of the sheriff of Warren county, who holds him as the agent of the keeper of the state prison, and to whom said sheriff is about to deliver him, to undergo imprisonment pursuant to the judgment of the circuit court of said county, and that such judgment is a nullity because relator says it was founded upon a verdict rendered against him by eleven men.

The return of the sheriff, amongst other matters showing his authority for relator's detention, states that the judgment of said circuit court (meaning the record of said court) shows that the relator was tried by eleven jurors, but that this seeming irregularity was a clerical error on the part of the clerk of the court, who omitted the name of one juror in making his entry of the names of the jury selected and sworn to try the issue between the state and the defendant, on a charge preferred of burglary and larceny.

On hearing before the judge, at chambers, the records of the court were produced, and it affirmatively and conclusively appeared that a jury of eleven men, whose names are set out in the record, tried the issue and rendered a verdict against the defendant, and that upon this conviction the judgment of the court was pronounced. The state was then permitted to introduce the clerk of the court, who testified, over relator's objection, that the said jury was composed of twelve men, but that the name of one, giving it, was omitted...