Walford v. State
| Citation | 106 Miss. 19,63 So. 316 |
| Decision Date | 10 November 1913 |
| Docket Number | 16,852 |
| Court | United States State Supreme Court of Mississippi |
| Parties | ALONZO WALFORD v. STATE |
APPEAL from the circuit court of Leflore county, HON. MONROE MCCLURG, Judge.
Alonzo Walford was convicted of murder and appeals.
On appeal, among other errors, appellant assigns the refusal to grant instruction number 22 asked by him, which is as follows: "The court charges the jury for the defendant that each and every member of the jury is a judge of the evidence and whether the defendant is probably guilty or not and, if any member of this jury believe the defendant not guilty of the crime, it is your duty to stand for acquittal in this case, even if all of your fellows, except yourself believe he is guilty; and you should never compromise, or give in, to the idea of the majority of your fellows that he is guilty, but you must have a doubt, arising out of the evidence, or want of evidence, the defendant is guilty of the crime charged against him in the indictment, and, if you have such a doubt of his guilt, you should stand out until the last for a verdict of acquittal in this case."
Affirmed.
M. B Grace, for appellant.
The special venire summoned from which to select a jury to try appellant could not be considered a special venire under the law. It is shown affirmatively, only thirty veniremen were served to appear for jury duty. The order of the court was, a special venire facias be directed to the sheriff, commanding him to serve, and summons not less than forty good and lawful men. Section 2715 of the Code of 1906, among other things reads as follows, to wit: "And in the event that there should be no such jury box, or the same should be mislaid, or the names therein have been exhausted, then the court may order a special venire facias to be issued by the clerk, directing the sheriff to summons as many jurors as may be necessary, "not less than forty," etc.
Was the so-called special venire facias a legal special venire facias? Was this a legal special venire? Did the sheriff comply with the statute? By statute, the appellant is given the right, being charged with a capital offense, to have a special venire of forty men, not less than forty, from which to select a jury to try him. He did not have this right at common law. Section 2715, Code 1906, specially requires, that the appellant, being charged with a capital crime, shall have this inalienable right, and the sheriff must summons as many men as necessary, in no case to be less than forty men. The statute gave the appellant the right to have this many men present from which to select a jury when he is put on trial. The sheriff may summons as many more than forty as he should think would be necessary, but he must summons at least forty men to begin with, and when they are exhausted, he may summons others. It requires this many men summoned from which to select a jury to try appellant, and if they have not been summonsed, it is not a legal constituted special venire, and the appellant has the right to object to being put to trial with less than that number from which to select a jury. It was error to put appellant to trial with a less number summonsed than forty from which to select a jury. Of course, the sheriff may have actually summonsed the required number, and one or more of them become ill and unable to attend court. This should be no fault of the sheriff.
It may be argued, in what way did the appellant suffer because the sheriff did not summons fully forty men? We answer this argument by saying, had the appellant started out with a legal venire from which to select a jury, a jury might have been obtained out of the forty, and a different result have been reached. An appellant charged with a capital crime, and the law giving him certain inherent rights, those rights should be carefully and jealously guarded by the court.
The statute requires that all special venires be drawn in open court. There the defendant is represented and his counsel is present to guard his rights, but to let a sheriff take the poll books and go off in a private office and fix up a list of veniremen he desired summonsed, the defendant or his counsel not being present and knowing nothing of it, in that event, proceedings are being had when the defendant is not present or his counsel, and this venire does not comply with the law, and it should be quashed on motion made to quash it. This procedure is a violation of the constitutional rights of the defendant to be present at and during all the proceedings of his trial. The proceedings of his trial are in progress from the time the indictment is returned into open court until sentence has been passed, and he has a right to be present at each and every step in the proceedings of his trial, and his personal presence is necessary. It is just as necessary that he be present when the special venire is drawn as it is that he be present when the jury returns with its verdict in the case, or, sentence is pronounced, murder being a capital crime. The special venire should have been quashed on either or both of the above grounds, and it was error to have forced the appellant to go to trial, his motion not having been complied with, the order of the court, and the statute not having been complied with.
Instruction number 22 requested by the appellant and refused by the court is one which has been passed by the supreme court. The case was appealed from the second district of Bolivar county, Mississippi, when Hon. SAM C. COOK was on the bench, but, we are unable to find the case at this time. This identical instruction was requested by the defendant and refused, and the defendant convicted of the crime of murder, and appealed; the action of the court in refusing this identical instruction was assigned as error, and upon this assignment of error, the judgment of the court was reversed, and the cause remanded. It has been suggested that the opinion of the court in that case has been overruled, but if so, we are unable to find the opinion of the court overruling it, hence we say the court erred in this case in refusing this charge. The Constitution of both the United States and the state of Mississippi guarantees, to a man charged with crime, the right to a trial by a jury, and it means a jury of twelve good and lawful men. When a man is charged with a capital crime, and death is the punishment, all twelve of the jurors should be convinced he is guilty as charged in the indictment, and if any member of the jury has a doubt of his guilt or innocence, he should not be required to compromise of his guilt or innocence, and give in to the others of his fellows, simply to return a verdict. The defendant should not be tried by such a juror, and if unfortunate enough to have to be tried by a bunch of weak-kneed fellows, the court should charge them correctly as to what the law is, and the rights of each member of the jury, as well as of the province of the jury, and we think it was error for the court to have refused this instruction.
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