Sullivan v. State

• Decision Date: 09 December 1929
• Docket Number: 27965
• Citation: 125 So. 115,155 Miss. 629
• Court: Mississippi Supreme Court
• Parties: SULLIVAN v. STATE

125 So. 115

155 Miss. 629

SULLIVAN v. STATE

No. 27965

Supreme Court of Mississippi

December 9, 1929

Division B

1. CRIMINAL LAW. Jury. After jury has been accepted, but before evidence is introduced, court may examine juror as to alleged disqualification not previously known; if examination of juror before evidence is introduced, but after jury has been accepted, leaves qualification in doubt, court may stand him aside or sustain challenge for cause; court's setting aside of juror or sustaining challenge for cause before evidence is introduced does not require reversal, absent abuse of discretion (Hemingway's Code 1927, sections 2331, 2365; Constitution 1890, section 264).

In a criminal prosecution where a jury has been impaneled and accepted by both the state and defendant, but, before evidence is introduced, the court may, in the exercise of sound discretion, examine a juror as to his qualifications where the alleged disqualification was not known at the time of impaneling and accepting the jury by the state or the defendant, and, if such examination leaves it doubtful as to whether the juror is qualified or not, the court may stand him aside or sustain a challenge for a cause and, unless there is an abuse of the discretion, such action will not cause a reversal of the case. Mabry v. State, 71 Miss. 716, 14 So. 267, cited.

2 JURY. Court on discharging juror before evidence is introduced, and after jury is sworn, need not discharge entire jury, absent legal objection to remaining jurors (Hemingway's Code 1927, sections 2331, 2365; Constitution 1890, section 264).

Where a jury has been impaneled and accepted by both the state and defendant and sworn to try the case, and it is discovered before any evidence is introduced that one of the jurors is disqualified, and the court excuses such juror or discharges him, it is not necessary to discharge the entire jury and retender an entire new jury to either party, in the absence of a showing of legal objection to the jurors who have been accepted and not excused by the court, but the court may proceed to fill the place of the juror excused for a cause and complete the jury.

3. CRIMINAL LAW. Jury. Laws respecting listing, drawing summoning, and impaneling juries are directory; unless there is radical departure from statutory scheme of selecting juries, court will not reverse because trial court excused certain jurors for cause and filled their places with others (Hemingway's Code 1927, sections 2331, 2365; Constitution 1890, section 264).

Under section 2365, Hemingway's 1927 Code (section 2718, Code of 1906), the provisions of law in relation to the listing, drawing, summoning, and impaneling juries are directory, and, unless there is a radical departure from the statutory scheme of selecting and impaneling juries, a court will not reverse a case for the action of the court in excusing one or more of the jurors for legal cause and filling their places with others in the manner provided by law.

4. CRIMINAL LAW. Showing that state's witness was absent from former trial because run out of town held not reversible error, where shown that defendant had nothing to do with matter.

In a prosecution for murder, where the district attorney interrogated a state witness as to why he was absent at a former term of the court, where a former trial had been had, and the witness answers that "I was drummed out. A crowd of white folks got after me and drove me through Magee and Mendenhall---got over there on the other side of Mendenhall at a filling station and I went from there to Louisiana," and where it is shown further in the examination of the witness that neither the defendant, nor his relatives, nor his counsel had anything to do with the running off of said witness it is imprudent in such case to go into such questions, but it is not sufficient to reverse the case unless some inferences may be drawn that the defendant, his relatives, or counsel was connected with running the witness away.

5. CRIMINAL LAW. District attorney's statement in argument in murder case that he expected verdict of guilty, made in reply to arguments of defendant's counsel, held not reversible error; counsel have considerable latitude in arguing to jury.

Where, in an argument of a district attorney replying to an argument of counsel for a defendant, in which counsel for the defendant asks the jury how they could justify a verdict before the people on three links in a chain of evidence of which the strongest link was the testimony of a named witness, in which the district attorney said: "I am expecting a verdict of guilty in this case. I am expecting it right off the reel and so does everybody else who heard it," this does not constitute reversible error, as it was a reply to an argument and as counsel have considerable latitude in such matters.

HON. W. L. CRANFORD, Judge.

APPEAL from circuit court of Covington county HON. W. L. CRANFORD, Judge.

Dewey Sullivan was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

J. W. Cassedy, Jr., and H. M. McIntosh, of Collins for appellant.

It is error to allow the state to peremptorily challenge one juror after he had been accepted by the state and a full panel tendered to the defendant.

Cook v. State, 85 Miss. 748, 38 So. 111; Gibson v. State, 70 Miss. 554, 12 So. 582; Hammond v. State, 85 Miss. 103, 37 So. 609; Funderbark v. State, 75 Miss. 20, 21 So. 658; State v. Mitchell, 12 So. 710; Stewart v. State, 50 Miss. 587.

The statutory qualifications of a juror may be waived.

West v. State, 32 So. 298; Sec. 4370, Code 1892; Garner v. State, 76 Miss. 515.

While there is some conflict of authority as to the grounds justifying the rejection of the juror after he is sworn, the weight of authority is that the court cannot reject a juror after he is accepted and sworn against the objection of one of the parties, in the absence of any good cause for his exclusion, or for a mere ground of challenge which the parties might waive, and which if waived, would in no way affect the juror's competency in the particular case.

35 C. J., p. 362, sec. 402; 35 C. J., p. 363, sec. 403; 16 R. C. L. 253, sec. 72; State v. Deidtman, 58 Mont. 13, 190 P. 117; 35 C. J. 364, sec. 404 1/2; 35 C. J. 383, sec. 428; West v. State, 32 So. 298.

The common-law rule is that in the trial of a felony, if a juror, the judge or the prisoner become incapacitated by illness or death, after the jury is impaneled and sworn in chief, the proper course to pursue is to declare a mistrial and begin de novo.

Dennis v. State, 96 Miss. 96; West v. State, 42 Fla. 244, 28 So. 430.

In the absence of a statute on the subject, the common law prevails.

Rex v. Edwards, Russ & R. 224, 3 Comp. 207, 4 Taunt 309, 13 Rev. Rep. 601; Kinloch's Case, Id. 22; Muirhead v. Evans, 6 Welsb. H. & G. 447; Thomp. & M. Jur., 273 and citations; Garner v. State, 5 Yerg. 160; State v. Curtis, 5 Humph. 601; Com. v. Knapp, 10 Pick. 477, 20 Am. Dec. 534; Jackson v. State, 51 Ga. 402; State v. Vaughan, 23 Nev. 103, 43 P. 193; Sterling v. State, 15 Tex.App. 249; Ellison v. State, 12 Tex.App. 557; State v. Scruggs, 115 N.C. 805, 20 S.E. 720; State v. McKee, 1 Bailey 651, 21 Am. Dec. 499; Com v. McCormick, 130 Mass. 61, 39 Am. Rep. 423; Grable v. State, 2 G. Greene 559; McFadden v. Com., 23 Pa. St. 12, 62 Am. Dec. 308; Com. v. Fells, 9 Leigh 613; U. S. v. Haskell, 4 Wash. A. A. 402; F. Cas., No. 15,321; 1 Bish., New Cr. Law, sec. 1014; Keech v. State, 15 Fla. 591; Contra, on statute; Stone v. People, Scam. 326; People v. Barker, 60 Mich. 277, 1 Am. St. Rep. 501, p. 307; State v. Ronk, 91 Minn. 419, 98 N.W. 334; Ellison v. State, 12 Tex.App. 557; Queen v. Ashe, 1 Cox C. C. 150 (1845); Dennis v. Mississippi, 96 Miss. 96, 50 So. 499, 25 L.R.A. (N.S.) 36 (1909); State v. Vaughan, 23 Nev. 103, 43 P. 193 (1896); State v. Davis, 31 W.Va. 390, 7 S.E. 24 (1888); Cobb v. State, 45 Ga. 11 (1872); Grable v. State, 2 G. Greene (Iowa) 559 (1848); People v. Stewart, 64 Cal. 60, 28 P. 112.

While it is true that section 2365 of Hemingway's 1927 Code, provides that all the jury laws are merely directory, however, these laws must be substantially complied with so as to prevent unfairness in the method of securing jurors.

The district attorney cannot comment upon matters and things which are not sustained by evidence and which are not competent as evidence.

Mathews v. State, 114 So. 816; Smith v. State, 105 So. 758.

Forest B. Jackson, Assistant Attorney-General, for the state.

Section 2331, Hemingway's Code 1927, section 2177, Hemingway's Code 1917, section 2685, Code of 1906 provides:

"But any juror shall be excluded if the court be of opinion that he cannot try the case impartially and the exclusion shall not be assignable for error."

It is inherent in the court to control the selection of the jury and whether with or without any cause or reason assigned to excuse a juror who may have been accepted by both parties.

Lewis v. State, 9 S. & M. 115; McGuire v. State, 37 Miss. 369; Jefferson v. State, 52 Miss. 767; Williams v. State, 32 Miss. 389, 66 Am. Dec. 615; Smith v. State, 103 Miss. 356, 60 So. 330; Garner v. State, 76 Miss. 515, 25 So. 363; Lewis v. State, 85 Miss. 35, 37 So. 497; Donahue v. State, 142 Miss. 20, 107 So. 15; Barnett v. State, 146 Miss. 893, 112 So. 586.

The discharge of one juror after being sworn but before any evidence is introduced, does not necessitate the discharge of the remaining eleven or the beginning of the trial de novo.

Hawkins v. State (Okla.), 216 P. 166; Turner v. Territory, 15 Okla. 561, 82 P. 650; Cabaniss v. State, 68 S.E. 849.

The district attorney had the right to answer argument of counsel for appellant.

King v State, 146 Miss. 285, 111 So. 378; Carter v....