Thomas v. State
| Decision Date | 10 June 1946 |
| Docket Number | 36064. |
| Citation | 26 So.2d 469,200 Miss. 220 |
| Court | Mississippi Supreme Court |
| Parties | THOMAS v. STATE. |
Gilbert & Cameron and Cecil Rogers, all of Meridian, for appellant.
Greek L. Rice, Atty. Gen., and Geo. H. Ethridge Asst. Atty. Gen., for appellee.
Appellant was indicted for murder. He employed capable and reputable attorneys for his defense, and they were present with him at every step taken after the return of the indictment. On the day set for the trial the attorneys for the defendant announced ready, whereupon the court proceeded to empanel a jury. When this was done and the jury was accepted by the State, and tendered to the defendant, counsel for the defendant dictated into the record the statement that 'the jury as tendered to the defendant, is without any examination by the defendant, accepted.' The State put on its witnesses and when each had concluded his testimony in chief, the attorneys for the defendant excused the witness and all of them successively by the statement that no cross-examination will be made at this time, or the right to cross-examine is reserved, or no questions at this time, or words to a similar effect, and when the State rested defendant at once made a motion that the court suspend the proceedings in the case and discharge the jury and direct a verdict for the defendant, for the reason that the defendant had not been arraigned or required to enter a plea to the charge.
On this motion it was shown to be true that the defendant had not been arraigned, and the State thereupon asked that the case be reopened and that the arraignment be permitted, which request the court sustained with leave to the defendant to recall the State's witnesses for cross-examination. This was done by the defendant under protest, and it may be added that, in addition, defendant made every other motion and maneuver that was necessary or proper to bring his point into review.
Appellant concedes that under the modern decisions by this Court an arraignment is not jurisdictional and may be waived by the defendant, and is waived when he takes part in the trial without objection as to the arraignment. Scruggs v State, 130 Miss. 49, 93 So. 482; Bufkin v State, 134 Miss. 1, 98 So. 452. But appellant says that he took no such part as would hold him to a waiver. We think it was sufficient if he was present and took any part at all, as the record shows he did.
It is a general rule which pervades the practice and procedure in this State, civil and criminal, that a party objecting to procedural errors or omissions must do so specifically and promptly. There are several reasons for the rule, two of which may now be stated as sufficient for the present case and the first is that thereby the error or omission may be at once...
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