Shows v. State

• Citation: 60 So. 726,103 Miss. 640
• Court: United States State Supreme Court of Mississippi
• Decision Date: 10 February 1913
• Parties: CHARLES SHOWS v. STATE

60 So. 726

103 Miss. 640

CHARLES SHOWS v. STATE

Supreme Court of Mississippi

February 10, 1913

October 1912

APPEAL from the circuit court of Simpson county, HON. W. A. HUGHES Judge.

Chas Shows was convicted of manslaughter and appeals.

The remarks of the district attorney referred to in the opinion and excepted to in a special bill of exceptions by counsel for the defendant are as follows: "If you don't convict this defendant on this testimony, you had as well tear the roof off the courthouse and throw the law books away."

Affirmed.

J. B Sullivan, L. E. Magee & Bee King, for appellant.

Charlie Shows was indicted for murder by the grand jury of Simpson county, Mississippi, at the November, 1908, term of the circuit court, and was tried at the March, 1912, term of said court and convicted of manslaughter, and sentenced to the state penitentiary for a term of five years.

This case should be reversed because of the failure of the court to quash the indictment. The minutes of the circuit court show that the grand jury for the terms of court held in said county during the years of 1905, 1906 and 1908 were not sworn except that the November term, 1908, of said court shows by an interlineation that the grand jury was sworn and it was at this time of the court that the question was first raised in the case of Sandy Hays v. State, on motion in arrest of judgment. See Hays v. State, 96 Miss. 153. As this interlineation was made in different handwriting and ink from the body of the order impanneling the grand jury, it was evidently made at a different time, of course by whom, or at whose suggestion, or at what time, we cannot say, but is well settled that the grand jury should be legally organized before it is authorized to proceed. See Hays v. State, 96 Miss. 154.

We feel furthermore that this case should be reversed on account of the remarks of the district attorney. Appellant being a negro and this being a very close case, the remark and actions of the district attorney, taken together with the failure of the court to instruct the jury, over the objeciton of the defendant, to disregard the remarks of the district attorney, we feel was sufficient to influence the action of the jury and cause them to render a verdict against the appellant.

Geo. H. Ethridge, assistant attorney-general, for the state.

It appears that counsel for appellant bases his hopes of reversal almost entirely upon the fact that the attorneys for Hays in the case of Hays v. State, 96 Miss. 154, secured a reversal of the Hay's case, because the grand jury had not been sworn as required by law in that case; and he introduced in evidence, on his motion to quash, the minutes of the court appearing at several different terms prior to the term at which appellant was indicted. His contention is that a part of the order on the minutes is in different handwriting and ink from the body of the order empaneling the grand jury, and infers from that that the order was not made at that term.

The record is to be treated here as carrying verity unless there was a distinct showing made of fraud. We cannot reach a conclusion unfavorable to the court on the regularity of the court at which the indictment was returned, because of any irregularities at any other term, and I submit that the showing made in this case is wholly insufficient to draw any adverse inference.

On the showing of this motion, Mr. Shepard, the present clerk, was introduced and read from the minutes of the court that the entry of a recital that W. P. Stroud was appointed and sworn as foreman of the grand jury, and at the close, that the other jurors were sworn, was written in a different colored ink. This witness also says. that the writing does not...