State v. Forbes

• Decision Date: 11 February 1924
• Docket Number: 73775
• Citation: 98 So. 844,134 Miss. 425
• Court: Mississippi Supreme Court
• Parties: STATE v. FORBES

98 So. 844

134 Miss. 425

STATE v. FORBES

No. 73775

Supreme Court of Mississippi

February 11, 1924

Division B

APPEAL from circuit court of Marion county, HON. J. Q. LANGSTON Judge.

Walter Forbes was charged with the unlawful possession of intoxicating liquors and, from an order sustaining a motion to quash the indictment, the state appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

H. T Odom, Assistant Attorney-General, for the state.

This is an appeal by the state from the judgment of the circuit court of Marion county sustaining a motion to quash the indictment herein, wherein the appellee was charged with unlawfully having in his possession intoxicating liquor.

I. Appellee's motion to quash the indictment should have been overruled because of his failure to make timely objections to the grand jury which returned the indictment, which must be done before the jury is impaneled. Dixon v. State, 74 Miss. 271, 20 So. 839; Posey v. State, 86 Miss. 141, 38 So. 324; Cain v. State, 86 Miss. 505, 38 So. 227.

II. A challenge of the grand jury as a body will not lie except for fraud after same has been impaneled and sworn. The motion to quash the indictment herein was a direct attack on the grand jury returning same, and since said motion did not allege fraud in the organization of the grand jury, nor against any member thereof, or that any member or the grand jury as a whole was not fair and impartial, the motion should have been overruled as a matter of course. Head v. State, 44 Miss. 749; Logan v. State, 50 Miss. 277; Dixon v. State, 74 Miss. 282, 20 So. 839; Posey v. State, 86 Miss. 141, 38 So. 324; Long v. State (Miss.), 96 So. 740.

III. Section 2211 of Hemingway's Code, same being section 2118, Code of 1906, provides that all of the laws in relation to the listing, drawing, summoning and impaneling are directory merely, and a jury listed, drawn, summoned, or impaneled, though in an informal or irregular manner, shall be deemed a legal jury after it shall have been impaneled and sworn; and shall have the power to perform all the duties devolving on the jury. Quick et al. v. State, 96 So. 737; Posey v. State, supra.

IV. No presumption of error will be indulged to invalidate judicial action. Cotton v. State, 31 Miss. 504; Mills v. State, 76 Md. 277, 25 A. 229; Burrell v. State, 129 Ind. 290; 28 N.E. 699; State v. Bradford, 57 N.H. 198; United, States v. Jones (D. C.), 69 F. 873; State v. Arnold, 55 Mo. 88; Posey v. State, supra.

For the foregoing reasons I respectfully submit that the trial court was in error in sustaining the motion to quash the indictment herein, and the case should be reversed and remanded for trial on the indictment.

T. B. Davis, for appellee.

The first grand jury impaneled was a legal grand jury. If this is true, and it should be true that the second grand jury (which found this indictment) is a legal grand jury, we are placed in the attitude of having two sets of grand jurors at one term, and if this is true, surely a third, fourth or fifth set would be legal.

We invite the court's attention to the case of Shepherd v. State, 89 Miss. 147. There but one body of men were drawn, but drawn by the judge himself, and he caused the slips containing the names to be turned up so that he could see who he was drawing as grand jurors. In reversing this case the court very strongly intimated that section 2197, Hemingway's Code, does not apply, but that a jury drawn in that way is void.

Section 2193, Hemingway's Code, provides how the grand jury shall be drawn, and it provides that the names so drawn shall constitute the grand jury, and be impaneled as such. It does not say that they shall be impaneled as "A" grand jury. Rawls v. State, 8 S and M. 599, is much in point.

To say that a judge can dismiss a grand jury and impanel another as he may see fit simply destroys all our law with reference to the organization and impaneling of grand juries, and places this one most important power in one man, and sweeps away all rights guaranteed by the Constitution and laws.

OPINION

COOK, J.

This is an appeal by the state from a judgment of the circuit court of Marion county sustaining a motion to quash an indictment charging the appellee with unlawfully having in his possession intoxicating liquor.

In December, 1921, there was called a special term of the circuit court of Marion county, for the transaction of criminal business only, and to continue for two weeks. On account of the illness of the regular judge, a special judge was commissioned to hold the term and upon the convening of the court a grand jury was impaneled from the venire regularly drawn and summoned, and this grand jury entered upon its deliberations and continued the same throughout the first week of the court. On the sixth day of the term the presiding judge communicated to this grand jury his desire that it submit its final report, and the jury thereupon presented its final report and was finally discharged. On the same day that the first grand jury was discharged, an order was entered directing the issuance of a venire facias commanding the sheriff to summon twenty-five qualified electors and resident citizens of the county, and the following order was entered on the minutes of the court:

"It appearing to the court that the grand jury impaneled on the first day of this term of the court, and who made their final report on the sixth day and was finally discharged, did not and could not complete their investigations of crime in and for Marion county, and the court being of the opinion that the best interest of the county and the public at large demands that another grand jury be impaneled, sworn and charged for the term, and that the jury boxes prepared by the board of supervisors of the county are practically exhausted and that it is to the best interest of the county that a grand jury be drawn from the body of the good and lawful men of Marion county and the sheriff of the county now in obedience to the order of the court made on a former day hereof has summoned twenty-five (25) resident citizens and...