Williams v. State

• Decision Date: 10 February 1930
• Docket Number: 28537
• Court: Mississippi Supreme Court
• Parties: WILLIAMS v. STATE

126 So. 40

156 Miss. 346

WILLIAMS v. STATE

No. 28537

Supreme Court of Mississippi

February 10, 1930

Division A

1. INDICTMENT AND INFORMATION. To have valid indictment, court and grand jury must be legally constituted and court must have jurisdiction.

It is essential to the validity of an indictment that both court under whose authority finding is made and grand jury itself be legally constituted and organized and that court have jurisdiction.

2. CONSTITUTIONAL LAW. Grand jury. Legislature had power to provide no grand jury shall be impaneled at term for transaction of civil business, and courts cannot change law (Hemingway's Code 1927, section 459).

Legislature had power to provide, in Hemingway's Code 1927 section' 459 (Laws 1918, chapter 151), for civil terms of court and that no grand jury shall be impaneled at term of court for transaction of civil business exclusively, and courts are powerless to change law in such respect.

3 COURTS. Indictment and information. Special terms for criminal business at time statute provided for civil term devoted exclusively to civil business, was unauthorized, and indictment was nullity (Hemingway's Code 1927, sections 459, 480).

Where circuit judge undertook to hold special term of court for criminal business under Hemingway's Code 1927, section 480 (Code 1906, section 688), at time when Hemingway's Code 1927, section 459 (Laws 1918, chapter 151) provides for civil term of court devoted exclusively to civil business in which no grand jury is to be impaneled, impaneling and proceedings of grand jury thereat were nullity and indictment of defendant for murder was nullity.

HON. T E. PEGRAM, Judge.

APPEAL from circuit court of Lafayette county HON. T. E. PEGRAM, Judge.

Lula Williams was convicted of murder, and she appeals. Reversed, indictment quashed, and defendant held to await the action of the grand jury.

Reversed, indictment quashed, and appellant held to await action of grand jury.

T. H. McElroy, of Oxford, for appellant.

A term of court is the time prescribed for holding court for administration of judicial duties; a definite and fixed period, prescribed by law for the administration of judicial duties, within which the business of the term should be transacted. It is the time prescribed for holding court, and not the time during which the court actually sits and is engaged in transacting business, which constitutes the term.

15 C. J., page 875, section 216.

The courts are without authority to pretermit regular terms of courts.

When a special term of court is unauthorized all the proceedings thereat are void, and the same is true where the facts essential to authorize the holding of a special term do not exist.

15 C. J., page 891.

An indictment found by a grand jury at a term of court held at a time unauthorized by law, or at a time at which no grand jury is authorized, is a nullity, and so are all preceding thereon. The term of court for which a grand jury is to be summoned and organized and the duration of its existence for the purpose of finding indictments are regulated by statute.

Page 196, sec. C; p. 192, sec. A, 22 Cyc; Aubour v. Y. & M. V. R.B. Co., 98 Miss. 714, 54 So. 158; Perkins v. State, 114 So. 392; Walton v. State, 112 So. 790.

Where the terms of court are fixed by statute and there is but one judge, a term held in one county or part of the district during the time fixed by law for holding a term in another county or part of the district, is illegal, and the proceedings thereat will not be sustained.

15 C. J. 881, sec. 230; Arbour v. Y. & M. V. R. R. Co., 98 Miss. 714, 54 So. 158; Y. & M. V. R. R. Co. v. Lawler, 130 Miss. 424, 94 So. 219.

W. A. Shipman, Assistant Attorney. General, for the state.

From a consideration of the authorities, as they construed the several statutes cited herein, the inference is warranted that under the constitutional provisions requiring at least two terms of the circuit court in each year, the requirements with reference to drawing and impaneling grand juries, and the interpretation of the sections of the Constitution and the statutes bearing upon the subject under discussion, that a judge had no authority to pretermit a regular term of the court; that it is very doubtful under the decisions of this court, if chapter 130, Laws of 1926, in its provisions as to a perpetual grand jury, cannot be held constitutional; that under the authority of the Walton case and the Perkins case, this court will probably reverse and remand the instant case, with directions that the appellant be held to answer an indictment found and returned by a constitutionally and regularly impaneled grand jury. We call the court's attention to the following authorities.

Sec. 447, Hemingway's Code 1917; Sec. 459 of Hemingway's 1927 Code; 15 C. J. 875, sec. 216; Ivy v. State, 119 So. 507; Section 158, Mississippi Constitution 1890; 15 C. J., page 891; 22 Cyc, pages 196, 192; Arbour v. Y. & M. V. R. R. Co., 98 Miss. 714; 96 Miss. 340, 54 So. 158; Perkins v. State, 114 So. 392; Walton v. State, 112 So. 790; Page 140, Laws of 1926; 15 C. J., sec. 230, page 881; Parker v. Sanders, 46 R. 249; State ex rel. Butler v. Williams, 48 Ark. 227; Ex parte Jones, 49 Ark. 457; Cooper v. Am. Cent. Ins. Co., 3 Colo. 318; Archer v. Ross, 2 Scham. (Ill.) 303; Y. & M. V. R. R. Co. v. Lawler, 130 Miss. 424, 94 So. 219; Sec. 216, at page 875, 15 C. J.; Sec. 230, page 881, 15 C. J.; Sec. 245, page 891, 15 C. J.; 22 Cyc, sec. 192; 22 Cyc, sec. 196; Ivy v. State, 119 So. 507; Friar v. State, 3 Howard 422; 2 Bish. Crim. Procedure, 868; Huggins v. State, 113 So. 352.

Argued orally by T. H. McElroy, for appellant, and by W. A. Shipman, Assistant Attorney-General, for the state.

OPINION

McGowen, J.

In the circuit court of Lafayette county, Lula Williams was indicted for and convicted of murder, and sentenced to serve a life term in the state penitentiary, from which sentence and judgment she appeals.

As this case is disposed of on the motion to quash the indictment, it will be unnecessary to detail the facts thereof.

The motion to quash the indictment is based on the fact that the circuit judge undertook to hold a special term of court for criminal business at a time when the statute provides for a civil term of court devoted exclusively to civil business, and at which no grand jury was to be impaneled.

The proceeding under discussion here is as follows: On August 20, 1928, the presiding judge of the Third circuit court district, in which Lafayette county is situated, issued an order calling a special term of the circuit court for Lafayette county to convene, at Oxford, on the second Monday in November, namely, the 12th day of November, 1928, and ordered that a grand jury be impaneled at said time and place as in a regular criminal and civil term. Thereafter the presiding judge certified to the Governor his inability to hold the term of court, and on the 7th day of November, 1928, the Governor issued a commission to Hon. B. N. Knox as special judge to preside at said term. On the same day, the 12th day of November, 1928, the commission and oath of office taken by the special judge were filed in the office of the clerk of the court, and an order entered on the minutes of the court reciting that the law provided for a civil term to be held at this time and place in said court, thus making a conflict between the statute and the order of the regular circuit judge calling a special term of court, and ordering that the civil term be pretermitted and that a special term of court be convened, organized, and held. Afterwards at this court it is shown that Lula Williams was indicted for murder. The indictment was filed by the clerk on November 14, 1928, and the case continued until the September, 1929, term of court, when the trial and conviction was had.

The special term was called by the regular circuit judge under the authority of section 480, Hemingway's 1927 Code, section 688, Code 1906, which provides for special terms of circuit courts, the jurisdiction therein exercised, and the machinery therefor. In this section there is contained the following applicable language: "At a special term the circuit court may impanel grand and petit juries, and shall have full jurisdiction to hear and determine all civil and criminal business, in the same manner as at a regular term."

It is essential to the validity of an indictment that both the court under whose authority the finding is made and the grand jury itself be legally constituted and organized, and that the court have jurisdiction. Barney v. State, 20 Miss. 68, 12 S. & M. 68; Rawls v. State, 16 Miss. 599, 8 S. & M. 599; Baker v. State, 23 Miss. 243; Portis v. State, 23 Miss. 578; Miller v. State, 33 Miss. 356, 69 Am. Dec. 351.

In the case of Walton v. State, 147 Miss. 851, 112 So. 790 792, chapter 130, Laws of 1926, was sought to be put in operation in the lower court with reference to perpetual terms of the criminal courts, and the court there said with regard to circuit courts: "The court shall be held at stated times, and that it was also contemplated that at each term of the court, grand and petit jurors would be drawn from the list provided by law, if they were needed, for such term. In other words, the Constitution intended to provide for a legal method of establishing suitable lists of jurors, and drawing from such lists of jurors at each term of the court." This statement is in the light of sections 158 and 264 of the Constitution of 1890, and the effect of the holding in this case is that at each term of court held where a grand jury was impaneled that the grand jury must be impaneled specially for the particular term to be held; in other words, the Constitution did not contemplate...