Estes v. State

• Court: Mississippi Supreme Court
• Writing for the Court: COOK, J.
• Citation: Estes v. State, 127 Miss. 309, 90 So. 80 (Miss. 1921)
• Decision Date: 12 December 1921
• Docket Number: 21507
• Parties: ESTES v. STATE

90 So. 80

127 Miss. 309

ESTES v. STATE

No. 21507

Supreme Court of Mississippi

December 12, 1921

APPEAL from circuit court of Winston county, HON. T. L. LAMB, Judge.

Jesse Estes was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

J. B Gully, H. H. Rodgers and Z. A. Brantley, for appellant.

Now the law contemplates clearly that a copy of the indictment and a list of the special venire summoned for his trial be delivered to defendant or his counsel, at least one entire day before set for trial, and this was not done because the copy did not show the sheriff's return of service on any of the jurors, and after the motion was filed, as shown on pages 26 and 27, the district attorney, over the objections of the defendant, made the following return upon the venire facias: "I have on this day at the hour of 8:15 o'clock, A. M., delivered to H. H. Rodgers, counsel for the defendant, Jesse Estes, copy of indictment and a list of special venire summoned for his trial. This the 15th day of July, 1920, C. C. McNeel, sheriff. Returned and filed this the 15th day of July, 1920.

R. E L. KIRKPATRICK, Circuit Clerk,

By G W. E. BENNETT, D. C.

This return was made on the venire facias on the 16th day of July, 1920, over the objections of the defendant by the district attorney after the state had accepted twelve men, and for the first time the defendant was called upon to pass upon the jurors. The motion was made and then the district attorney made the above return. The list submitted to the counsel summoned from the special venire facias did not show above the signature of the sheriff that they had been summoned and then were under process of this honorable court to serve as jurors to try Jesse Estes and hence, it was no notice in contemplation of law that said men had been summoned and served with the proper legal process to try said cause, as shown on pages and of the record. A copy of the indictment and list of the special venire summoned for his trial was not delivered to the defendant, or his counsel, one entire day before said cause was set for trial, hence, the defendant did not have the benefit of what the law gives him and the motion was filed to quash the special venire for that reason, as shown on pages and .

A list of the jurors that were called and ordered to be summoned by the court was of no benefit and could not have been any benefit to this defendant. The law means, if it means anything, that a copy of the indictment of a list of the jurors summoned shall be given to the defendant, or his counsel, twenty-four hours before the case is set for trial, and, in this instance it was not done.

The return of the sheriff had not been made showing that they had not been summoned, signed by the sheriff or his deputy showing that they had been summoned, served with process of the court as jurors to be called on the date that the cause was set. Now after the state had selected twelve men and this motion, as shown on pages 26 and 27, had been filed, then the district attorney undertook to cure this error which could not then have been done, as the defendant had not such notice as the law contemplates, wrote on the indictment the return of the sheriff on the 16th day of July and dated it the 15th day of July, as shown on record pages and . The law is on all fours in this state that it must be a true copy of the indictment and a copy of veniremen summoned in said venire facias and if the record shows that this has not been done then the error is vital and the defect fatal.

The word "summoned" means an executed process and the proof of the executed process is that the writ, paper of venire facias must show by the proper officer and he is the sheriff in this case, that it has been served. 7 Words & Phrases, page 6787; United States v. Rose, 6, F. 136, 137.

The statute specifically lays down this exact language in section 1239, Hemingway's Code: "Any person indicted for a capital crime shall, if demanded by him, by motion in writing, before the completion of the special venire, have a copy of the indictment and a list of the special venire summoned for his trial, delivered to him or his counsel at least one entire day before said trial. Any person in jail charged with capital crime, or who is indicted for such crime, and who is unable to employ counsel, shall at his request, be allowed counsel not exceeding two, to be chosen for him by the judge in vacation or by the court, to defend him in the circuit court, upon the trial of such charge, and such counsel selected and appointed by the judge or court shall have free access to the prisoner, who shall have process to compel the attendance of witnesses in his favor."

Now in this case the motion was made for a special venire, as shown on record pages 26 and 27, and the first time this defendant was called upon to pass upon the jury was after twelve men had been called for the state and accepted, then this defendant for the first time had an opportunity to raise the question as to his legal objection to the venire facias, which he did. In the case of Collier v. State, 64 Miss. 373.

There was no motion made for special venire, hence the court's attention was not called to it until the case had been tried and motion for new trial had been made. Of course the court could not act in that behalf but in this instance a motion for special venire was made by the state's attorney, and the defendant asked in writing for a copy of the venire summoned and of the indictment and to this he was entitled, but he did not receive a copy of the indictment and the veniremen summoned as the law requires; he...