Smith v. State
| Decision Date | 11 November 1940 |
| Docket Number | 34319 |
| Citation | 198 So. 562,190 Miss. 24 |
| Court | Mississippi Supreme Court |
| Parties | SMITH v. STATE |
Suggestion Of Error Overruled, December 9, 1940.
APPEAL from the circuit court of Lowndes county, HON. JOHN C STENNIS, Judge.
Proceeding between Royce Smith and the State. From an adverse judgment the former appeals. Affirmed.
Affirmed.
John B. Higgins and L. K. Ramsey, both of Jackson, for appellant.
The lower court was in error in method of impanelment of the trial jury.
Appellant was entitled to an impartial jury.
After the board of supervisors makes its selection of jurors for the time fixed by statute, from then on out it is a matter of chance, and the defendant is entitled to the breaks the law and chance may give him. This procedure in the Columbus district gives the state two choices to the defendant one in this matter of chance.
Where is the statute authorizing the state to pass upon a jury of eighteen men, and where is the statute authorizing the court to present eighteen men to the state or to the defendant for exercise of challenges? We submit that the defendant cannot be required to exercise any of his challenges, either for cause or peremptory, until the state has presented him a full panel of twelve men.
A defendant is entitled to have presented to him a full panel of jurors, all of whom have been accepted by the state. He may challenge any juror so presented and when the vacancies caused by his challenges are filled and the added jurors accepted by the state, he may challenge the added jurors, but not any of the original panel.
Funderburk v. State, 75 Miss. 20; Gammons v. State, 85 Miss. 103, 37 So. 609; Sec. 1277, Code 1930.
W. D. Conn, Jr., Assistant Attorney-General, for appellee.
The trial court in impaneling the jury required both the state and the defendant to challenge for cause before the state was required to use any of its peremptory challenges. Appellant objected to that procedure and insisted that the state should challenge for cause as well as for peremptory before he should be required to exercise any challenge either for cause or peremptory.
The writer of this brief has run up against the procedure adopted by the court in this case as well as that insisted for by appellant. The practice varies in the several circuit court districts of the state. We think that either rule of procedure is permissible under the statute. Our statute, Section 1277 of the Code of 1930, merely provides that "all peremptory challenges by the state shall be made before the juror is presented to the prisoner; and in all cases the accused shall have presented to him a full panel before being called upon to make peremptory challenges."
We think and so submit that either the procedure adopted by the trial court or that insisted upon by appellant meets the requirement of the statute. In neither case is the appellant required to use any peremptory challenges of jurors until the state has presented him a full panel which is satisfactory to it, both for cause and peremptorily. It occurs to us that this is a procedural matter which can be decided upon by the trial courts.
Argued orally by John B. Higgins, for appellant, and by W. D. Conn, Jr., for the appellee.
We find no reversible error in this record, and consider that the only point which requires discussion is the complaint made by appellant as regards the manner in which the trial jury was impaneled.
It has been difficult to determine from the record the precise manner in which this was done, but the following outline of it will be sufficient. There was a special venire and the trial judge first called the entire venire to the bar and inquired as to the general qualifications of the members. To each of those found to possess the general qualifications required of jurors and who had no valid excuses to offer there was given a number, and thereupon twelve men were called to the box and six additional were placed in chairs in front of the box, making eighteen in all. The trial judge then proceeded to the proper inquiries upon the question whether any one or more of the eighteen were disqualified to sit in the particular case about to be put on...
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Bright v. State
...the truth, and then for counsel or the court to question them.' 31 Am.Jur. Jury § 136, at 120 (1958). In the case of Smith v. State, 190 Miss. 24, 198 So. 562 (1940), the entire venire was called to the bar and questioned by the judge; some were discharged, but twelve men were then called t......
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Peters v. State, 48432
...accepts the jury. This Court had an opportunity to examine the so-called 'new' method of selecting a jury in the case of Smith v. State, 190 Miss. 24, 198 So. 562 (1940). In that case this Court detailed the procedure taken by the trial judge. After the panel had been determined to be quali......
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Hollis v. State, 39222
...declined either to exercise challenges or to accept the jury. Consequently, he is now in no position to complain of error. Smith v. State, 190 Miss. 24, 198 So. 562, is authority for the right and power of the court to qualify more than twelve jurors at the time. But the exercise of perempt......