Walton v. State

• Citation: 112 So. 790,147 Miss. 851
• Decision Date: 23 May 1927
• Docket Number: 26421
• Court: Mississippi Supreme Court
• Parties: WALTON v. STATE. [*]

112 So. 790

147 Miss. 851

WALTON v. STATE. ^[*]

No. 26421

Supreme Court of Mississippi

May 23, 1927

APPEAL from circuit court of Lauderdale county HON. R. M. BOURDEAUX Judge.

(In Banc.)

1 COURTS. Statute making court terms for transacting criminal business perpetual held amended by statute fixing circuit court" terms of Tenth circuit court district as relates to Lauderdale county; one term of court fixed by law terminates at beginning of another term fixed by law (Laws 1926, chapters 130, 140).

Chapter 130, Laws of 1926, is amended by chapter 140 of the Laws of 1926, in so far as Lauderdale county is concerned, and one term of the court fixed by law will terminate at the beginning of another term fixed by law.

2 JURY. Juries should be drawn and impaneled at terms of circuit

court for which they serve; juries of one term of circuit court cannot be held over for succeeding term (Constitution 1S90 sections 158, 264; Hemingway's Code, sections 2180-2182, 2186).

Under section 158 of the Constitution of 1890, a circuit court shall be held in each county at least twice in each year. And under section 264 of the Constitution the juries, to be selected as provided by law, are to be drawn and impaneled at such terms. The juries of one term cannot be held over for a succeeding term under this section.

3. COURTS. Jury. Legislature may provide for more than two terms

of court in county in year; if Legislature provides for more than two terms of court in county in year, juries for each term must be drawn according to Constitution and statutes; "term of court" is period of time fixed by Legislature or by order of circuit judge when authorized by law in calling term of court (Constitution 1890, sections 158, 264; Hemingway's Code, sections 466, 708, 2180-2182, 2186).

While the Legislature may provide for more than two terms of court in a county in any one year, if it does so the juries for each term must be drawn in the manner provided by Constitution 1890, section 264, and statutes made in pursuance thereof. A term of court is a fixed period of time, and is fixed by the Legislature or by an order of the circuit judge when authorized by law in calling a term of the court.

4. GRAND JURY. Indictment and information. Indictment by grand

jury impaneled at former term of court, when another term has intervened, is void; grand jury ceases to be legal body when term of court subsequent to that at which it was impaneled begins (Laws 1926, chapters 130, 140; Constitution 1890, sections 27, 61, 158, 264; Hemingway's Code, sections 2180-2182, 2186).

An indictment found by a grand jury impaneled at a former term of the court, where another term of court has intervened, is without authority to act, and an indictment found by such grand jury thereat is void. The grand jury ceases to be a legal body when a subsequent term of court begins.

ANDERSON and HOLDEN, JJ., dissenting.

HON. R. M. BOURDEAUX, Judge.

APPEAL from circuit court of Lauderdale county HON. R. M. BOURDEAUX, Judge.

Marion Walton was convicted of murder, and he appeals. Reversed and indictment quashed, but appellant to be held to await action of grand jury.

Judgment reversed.

Cameron & Dunn, for appellant.

The grand jury which indicted appellant was not a legally constituted body, and the court erred in not sustaining appellant's motion to dismiss the body attendant upon the court as a grand jury. Review just what a grand jury is and what part it plays in the organized court of criminal jurisdiction. People v. Naughton (N. Y.), 7 Abb. P. (N. S.) 421-423.

In an effort to keep before us one of the basic legal reasons why this grand jury was not a legal grand jury, see article 14, section 264, Constitution of Mississippi. The legislature in chapter 130, Laws of 1926, passed a law to make the terms of the several circuit courts for the transaction of criminal business, perpetual and this in the face of the unqualified and simple mandate of the Constitution of our state, that grand and petit jurors shall be drawn for each term of the circuit court.

"The word 'term' as applied to time signifies a fixed period or a determined or prescribed duration" (8 Words and Phrases, p. 6916), and surely this definition fits in with the experiences of our courts in that when we speak of a term of court, we most assuredly have reference to a court holding forth for and over a fixed time.

We readily admit that the court has the power to reconvene the grand jury before the expiration of the term. Haynes v. State, 93 Miss. 670. That in case where the legislature has divided a term into two sections, one for civil and one for criminal business and the grand jury is reconvened at and for that part of the same term devoted to civil business by the statute, the right to so do is not here questioned; that too, being a well-settled rule by this court. Nor do we question the right of the court to reconvene a grand jury after the adjournment of the term and before the convening of a next regular term or special term thereof under this Act, if constitutional, for this too, is a point which is readily conceded to the court, but we do not feel that these questions are involved in this matter.

The question presented to us here, in a nut shell is, when the August term of the circuit court of Lauderdale county was convened and the grand jury impaneled and sworn and the August term was adjourned, and the September term was held and adjourned and the Special October term was held and adjourned and the Regular December term was held and adjourned, could the court reconvene the body of men who acted as grand jurors at the August term? Could we say that there was such a grand jury to be so reconvened? Had the court any more right or power to reconvene this grand jury after these several terms of court had been held and adjourned than it would have had to reconvene the petit jurors of the August term?

We must bear in mind that we are not here dealing with a statute that says such grand jurors shall serve until their successors are impaneled at a next regular criminal term or special term of the court for there are no such qualifying words in the statute or the Act. In fact, the Act, to be consistent, necessarily excludes any such idea for it would contradict the whole scheme of making the terms perpetual for the transacting of criminal business.

Section 2 of chapter 130, Laws of 1926, says: "The grand jurors shall serve until their successors are selected and impaneled at the next session of the regular term of the said court or special term thereof." And this can be taken to mean, of course, only the succeeding term of the court prescribed by statute.

The conclusion of the minutes of the August term recited: "It is now ordered court adjourned until court in course." See Beard v. McLain, 117 Miss. 316, 78 So. 184. This "court in course" meant until the next regular term of the court or until the ensuing September term. Sagury v. Bayless, 13 S. and M. 153, at 157.

It is very clear then, that by the Constitution, the statutes and the decisions of the state, terms of courts are indispensable and that each of these terms must end at some time and that time must be at the next ensuing term fixed by the statute.

Hence under the foregoing decision and under any view, one term of court cannot run through another term, and, therefore, the August term of the Lauderdale county circuit court expired and ended at the convening of the September term and since grand juries can only act at a term of court, the grand jury which indicted appellant ceased to function when the August term expired.

We must not here confuse the first section of the Act which makes all terms of the court open for the trial of cases involving a life term or capital punishment. Clearly, such cases can be tried at any and all terms of court, civil or criminal. But the power to try such cases at any time is quite a different thing from the functioning of a grand jury from term to term. The perpetuation of terms of court and making of terms open for the trial of certain criminal cases is materially distinct from the power of grand juries to indict. Any term of court can try a man but only some one grand jury can inquire into and indict that man.

J. A. Lauderdale, Assistant Attorney-General, for the state.

Counsel for appellant contend that chapter 130, Laws of 1926, is unconstitutional, in that it violates section 264 of the state Constitution. The rules with reference to construing the constitutionality of a statute are well established by the courts. University of Mississippi v. Waugh, 105 Miss. 627; Johnson v. Reeves, 112 Miss. 227; Knox v. Grenada County, 141 Miss. 701, 722.

Section 158 of the state Constitution is as follows: "A circuit court shall be held in each county at least twice in each year." This section is the only limitation in the Constitution on the legislature with reference to the terms of the circuit courts of the state. It is not controverted that the legislature has the right to fix the number of terms for the circuit courts, or the duration thereof. It also has authority to fix the terms at which criminal business may be transacted, and the terms at which civil business may be transacted. The legislature has seen fit to fix two terms of the court in Lauderdale county for the trial of criminal cases, and it has also fixed terms for the transaction of civil business. At a term fixed for civil business, the circuit court would have no authority or jurisdiction to try a criminal case.

Chapter 130, Laws of 1926, makes the terms of the circuit courts for criminal business extend from the commencement of one term to the commencement of the next term. In other words, the August term of the circuit...