Sheppard v. State

• Decision Date: 07 January 1907
• Docket Number: 12,288
• Citation: 89 Miss. 147,42 So. 544
• Court: Mississippi Supreme Court
• Parties: JOHN SHEPHERD v. STATE OF MISSISSIPPI

42 So. 544

89 Miss. 147

JOHN SHEPHERD v. STATE OF MISSISSIPPI

No. 12,288

Supreme Court of Mississippi

January 7, 1907

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

Shepherd the appellant, was indicted and tried for and convicted of the murder of one Terrell, sentenced to the penitentiary for life, and appealed to the supreme court. The assignment of error upon which the case was decided was predicated of the action of the trial judge in selecting the grand jury which found the indictment upon which appellant was tried and convicted. The facts are fully stated in the opinion of the court.

Cause reversed and indictment dismissed.

J. H Price, for appellant.

At the very threshold of this prosecution the state meets an insurmountable barrier, which must result in the reversal of the case. Before the grand jury which found the indictment was impaneled, the defendant in open court interposed his objection to the novel methods of the trial judge in selecting the grand jury. In organizing the grand jury, the judge drew their names from a hat, selecting those names which suited him, until he had selected an entire grand jury. This action is condemned bye the text-books and by our own court's construction of existing statutes. Posey v State, 86 Miss. 141. Since the legislature of 1857, the impaneling of a grand jury is conclusive evidence of competency and regularity, but the statute passed by that legislature and contained in subsequent codes, does not cure the error here. In the case above referred to, this court sustained the lower court, and as reason therefor, stated that had objection been preferred at the proper time, and in proper manner been overruled, such ruling would, as to any one prejudiced thereby, have become reversible error. We ask was objection taken, in the case at bar, at the proper time? The answer is, that the objection was made before the grand jury was impaneled. Was the objection made in proper manner? The answer is, it was taken in open court, before the grand jury was impaneled, as shown by special bill of exceptions. Section 2371 of the Code of 1892, as amended by Acts 1896, p. 95, sets out the exact method of how a grand jury should be drawn. "There shall be drawn out by a person designated by the judge, the number directed by the court, and said names shall be drawn from each box in regular order until the number designated is drawn, and the jurors whose names are so drawn shall constitute the grand jury, and be impaneled and sworn as such."

It was not in the purview of the statute for the judge to arrange the names on the slips with face up, exposing the names thereon. Nor was it contemplated that the judge would select out of each hat names to serve on the grand jury. Nor was it in contemplation of the statute that the judge should then, after having the names thus before him, select only such names as he desired for grand jurors. Nor was it in contemplation of the lawmakers that the judge should select at all. The action of the judge in thus placing the names in the hat, arranging the slips so as to select those which he wanted, and ignoring those which he did not want, was grave error, and not to be cured by sec. 2375 of the Code of 1892, inasmuch as the objection was made by appellant before the impaneling of the grand jury. It is not necessary that there was fraud, or that damage resulted from the irregularity. The matter goes to the foundation of trial by jury. See Dixon v. State, 74 Miss. 271, holding that if there were no registration books in the county to guide the board of supervisors in selecting jurors, their action in making a jury list was irregular, and upon objection before impaneling of the grand jury, the panel must be quashed. See, also, Purvis v. State, 71 Miss. 706, where the court said that a motion to quash a special venire was properly sustained, where in making up a jury list the board of supervisors disregarded sec. 2358 of the Code of 1892, on the question of selecting a list of names for jury service from the different districts of the county. This latter case was a mere irregularity on the part of the board, but the objection was timely made and properly taken by the district attorney.

R. V. Fletcher, assistant attorney-general, for the state.

The most important question raised by appellant's assignment of error relates to the manner in which the grand jury was organized. It appears that the circuit judge personally drew from the jury box twenty names to constitute the grand jury. The slips were arranged in five separate compartments, as required by law, and contained no names except those drawn on the regular jury list, as provided by statute. The only irregularity complained of is that the circuit judge did not leave the selection of the grand jury entirely to chance, but that he looked at the names on the slips, and selected such as did suit him, and left such as did not suit him in the box to comprise the petit juries. It is not contended that good men were not placed on the grand jury, nor that injustice was done to the prisoner, nor that the grand jury, as thus drawn, was not fair and impartial.

It is worthy of note that the Act of 1896, chapter 84, section 4, dealing with the impaneling of grand juries, does not say that the person drawing the jury shall trust to chance alone. Nothing is said about not examining the names on the slips. In other words, the action of the trial judge is not positively prohibited by statute. No express letter of the law has been violated. There is no reason inherent in the nature of the jury system why the selection of juries should be determined by lot. It is a matter absolutely within the control of the legislature, and that body may at its discretion provide any plan for selecting a grand jury. Box v. State, 34 Miss. 614. Since the statute, then, by its terms, does not prohibit the trial judge from inspecting the slips before selecting the names, it would seem that the law has been complied with.

All jury laws are directory, and informalities and irregularities in drawing, summoning, and impaneling juries do not affect the legality of the jury. Code 1892, § 2389. Commenting on this section, this court has said: "It is the duty of the court to superintend the selection of the jury, in order that it may be composed of fit persons; large discretion must be confided to the court in the performance of this duty; nor will the action of the circuit court in this behalf be subject to review here, unless some violation of law is involved, or a gross and injurious exercise of discretion is shown. The primary object is to secure a fair, unbiased jury." Head v. State, 44 Miss. 731; Gilliam v. Brown, 43 Miss. 641. See, also, Buchanan v. State, 84 Miss. 332, holding that an irregularity in the drawing of the special venire will not invalidate a verdict, if a fair and impartial jury has been obtained.

In the case at bar no individual grand juror was challenged on account of prejudice, bias, or want of qualification. The objection was merely to the way the grand jury was selected. In the case of Posey v. State, 86 Miss. 141, it was said that it is the privilege of the defendant, at the time the grand jury is being impaneled, to tender his personal challenge to each individual so selected, or he has the right, at any time, where the facts warrant, to prefer a challenge to the array for fraud. This would appear to be the extent of the defendant's rights. In other words, he has no right to complain of an irregularly impaneled grand jury, composed of persons fully qualified in other respects for jury service, drawn from the list in the jury box, unless he can show that his case will thereby be prejudiced, and some harm possibly come to him.

In West v. State, 80 Miss. 710, the jury box was exhausted, and the sheriff was directed to summon a venire. It was held not error for the sheriff to take the registration books and assessment rolls of the county from which to select the venire. As tending to show that fraud alone is sufficient to cause the dismissal of jurors, see Campbell v. State, 17 So. 441, construing and applying section 2387 of the code of 1892, which section provides that there shall be no challenge to the array except for fraud. See, also, 1 Bishop's Crim. Prac., 875, and cases there cited.

The whole tenor of these authorities, and numerous others not here cited, is that if a fair and impartial grand jury has been selected, and if it appears that the defendant has in no wise been injured, any irregularities in the drawing,...