Opinion
No. 32087.
June 1, 1936.
1. JURY.
Motion to quash special venire on ground that it should have been summoned from new jury list held properly overruled where new list had been in jury box less than thirty days before special venire was granted and trial had (Code 1930, secs. 2033, 2062).
2. JURY.
Special venire will not be quashed except for fraud or total departure from procedure laid down (Code 1930, sec. 2062).
3. CRIMINAL LAW.
In murder prosecution, instruction that if defendant and another went to certain store with common design to rob deceased, that defendant should be found guilty although he did not personally fire fatal shot fired while they were engaged in such design held proper when taken in connection with all instructions.
4. CRIMINAL LAW.
Where defendant's codefendant in murder prosecution was first tried and convicted, reference to such conviction by county attorney in closing argument held cured of any prejudicial effect by instruction to jury to disregard statement.
APPEAL from circuit court of Coahoma county. HON. WM. A. ALCORN, Judge.
Semmes Luckett, of Greenwood, for appellant.
The court erred in overruling appellant's first motion to quash the special venire.
On October 10th, after the defendant had been arraigned and plead guilty, the attorney for the defendant moved the court for a special venire. The court sustained the motion and under the provisions of section 2061 of the Code of 1930, directed the sheriff to summon fifty jurors from the body of the county to serve as such special venire. However, two days prior thereto, on the 8th day of October, the Board of Supervisors of Coahoma County, acting under the provisions of section 2033 of the Code of 1930, in order to refill the jury box exhausted by the quashing of the same, on October 3, 1935, had made a new list of jurors in the manner provided for in said statute. A certified copy of that list had been, on the following day, October 9th, delivered by the clerk of the Board of Supervisors to the clerk of the circuit court, and had been, by the latter, placed in his safe, where it remained until the hearing on the motion on October 15th. There was a jury box and it had not been mislaid.
Sections 2061, 2033, Code of 1930.
Section 2061, Code of 1930, guarantees to every person charged with a capital crime, upon his demand, a special venire. It guarantees to him that such special venire, except in the instances mentioned in the statute, will be drawn, in open court, from the jury box. The instances mentioned in the statute, which excuse the drawing of the special venire from the jury box and authorize the trial court to direct the sheriff to select the same from the body of the county, are these: when there is no jury box, or the same has been mislaid, or the names therein have been exhausted. When there is a jury box with names therein the special venire must be drawn therefrom.
The trial court held that there were no names in the jury box on October 10th, the day on which it ordered the special venire from the body of the county. I submit that it was in error in so holding.
Section 2033, Code of 1930.
If there was a jury box from which the special venire could have been drawn, then the failure of the trial court to draw the special venire from the box constituted reversible error.
Lee v. State, 138 Miss. 474, 103 So. 233.
The court erred in denying appellant's second motion to quash the special venire.
Appellant's second motion to quash the special venire asserted, as ground therefor, that the sheriff who selected the same, in selecting the same, did so in a manner contrary to law. In support thereof, he showed, by the sheriff himself, that he, the sheriff, in selecting the special venire, took the names thereof from the poll books of the county without ascertaining whether the persons so selected were qualified jurors or not.
Section 2061, Code of 1930.
The court erred in denying appellant's third motion to quash the special venire.
Appellant's third motion to quash the special venire was based on the fact that the sheriff of the county, the officer who personally selected the special venire from the body of the county, actively assisted the district attorney in the selection of the trial jury, and the employment by the court of one Frank Hamilton, an important witness for the State, in relaying word to the several veniremen of their call to the jury box.
The court erred in granting the state its second instruction.
The state seeks, by that instruction, to secure a conviction of the appellant, even though the actual murder of J.C. Parker was committed by Fedro Pearson and not by appellant. In other words, it seeks a conviction of appellant either as a principal in the second degree or as an accessory before the fact. In order to return such a conviction, the jury was instructed by the court that they need believe only two things; (1) that appellant and Fedro Pearson, both having a common design to rob J.C. Parker, went to the store of J.C. Parker for the purpose of robbery; and (2) that Fedro Pearson, while engaged in robbing J.C. Parker, shot and killed J.C. Parker.
I submit that the crime committed by Fedro Pearson cannot be imputed to appellant merely because he formed, with Fedro Pearson, a design to rob J.C. Parker and accompanied Fedro Pearson to the store of J.C. Parker.
Before one can be convicted of a crime actually committed by another, it is necessary that it be shown that he or she aided, assisted or abetted the one who actually committed the crime. It is not sufficient that he or she be merely present.
Crawford v. State, 97 So. 534, 133 Miss. 147; Bruce v. State, 103 So. 133, 138 Miss. 382.
The instruction complained of does not require the jury to believe that the appellant was "engaged" in the commission of the crime of robbery. It advised the jury that the mere sharing of a common design to rob and of going to the scene of the robbery was sufficient to convict the appellant of the crime of murder. Such facts might be sufficient to convict the appellant of robbery, but they certainly are not sufficient to convict one of a crime which grew out of the robbery, of a crime of which the robbery was only one of the two major elements.
Section 985, Code of 1930.
Wm. H. Maynard, Assistant Attorney-General, for the state.
The court properly denied appellant's motion to quash the second indictment.
The court properly overruled appellant's first motion to quash the special venire.
Peck Furniture Co. v. Greer, 146 So. 311; Sec. 2061, par. 2, Code of 1930.
Appellant's argument that the judge should have directed the special venire to be drawn from a list which had been made up by the board of supervisors cannot prevail.
Sections 2033 and 2035, Code of 1930.
In the present case, there is no showing other than in the stenographer's notes, that the list which was purported to have been made by the board of supervisors was ever delivered to the circuit clerk, nor is any showing made as to what disposition was made of said list.
Nelson v. State, 160 Miss. 401, 133 So. 248; Section 2064, Code of 1930.
Our case is analogous to the Nelson case, supra, for the reason that there is no showing in the case at hand that the list which was purported to have been made by the board of supervisors was ever transmitted to the circuit clerk. It was likewise decided in the case of Campbell v. State, 17 So. 441, that the venire in a criminal case will be quashed because the jury was not drawn from a legal box prepared by the board of supervisors.
It has been decided by this court, in construing section 2062 of the 1930 Code that a venire will not be quashed except for fraud.
Bond v. State, 128 Miss. 792, 91 So. 461; Harris v. State, 155 Miss. 794, 125 So. 253.
The lower court properly overruled appellant's motion to quash the special venire.
Arnold v. State, 171 Miss. 164, 167 So. 247.
The lower court properly granted the second instruction for the state.
This instruction is merely to the effect that if defendant and Fedro Pearson, with a common design to rob J.C. Parker, went to said store and while appellant and Fedro Pearson was engaged in robbing J.C. Parker, Fedro Pearson shot the said J.C. Parker, then appellant was likewise guilty of murder.
This type of instruction was held to be proper in the case of Fisher v. State, 150 Miss. 206, 116 So. 746.
Appellant and Fedro Pearson were jointly indicted for the murder of J.C. Parker. There was a severance and each tried separately, and both were convicted and sentenced to be hanged. Pearson appealed, and the judgment against him was affirmed. Pearson v. State (Miss.), 167 So. 644, 645. Appellant also appeals.
The two cases are identical down to and including the second motion to quash the indictment and the order overruling it.
Appellant's motion for a special venire was granted and by the sheriff summoned from the qualified electors of the county at large. Appellant made a motion to quash the special venire upon the ground that when it was granted by the court a new jury list had been put in the jury box by the board of supervisors, and that under the law the special venire should have been drawn and summoned from this list. The record shows that the new jury list was prepared by the board of supervisors and put in the jury box less than thirty days before the special venire was granted and the trial had. The motion was overruled by the court. Appellant complains of that action of the court. The prior jury list had been quashed upon the ground set forth in the Pearson Case. Section 2033, Code 1930, provides, among other things, that if there is no jury list the board of supervisors may, at any meeting, make a new list to serve as jurors "for the twelve months beginning more than thirty days afterward." The statute, in plain language, provides that the list is not to be used until after the expiration of thirty days. Although not directly in point, Lee v. State, 138 Miss. 474, 103 So. 233, and Nelson v. State, 160 Miss. 401, 133 So. 248, support the view that the new jury list could not be used until more than thirty days afters its adoption. Furthermore, section 2062 provides as follows:
"A challenge to the array shall not be sustained, except for fraud, nor shall any venire facias, except a special venire facias in a criminal case, be quashed for any cause whatever."
Under this statute a special venire will not be quashed except for fraud or a total departure from the procedure laid down. Harris v. State, 155 Miss. 794, 125 So. 253; Bond v. State, 128 Miss. 792, 91 So. 461.
The giving of the second instruction for the state is assigned and argued as error. That instruction is in this language:
"The Court charges the jury that murder is the killing of a human being without authority of law, by any means or in any manner when done with the deliberate design to effect the death of the person killed, or, without such design when done in the perpetration of the felony of robbery.
"The Court therefore charges the jury in this case that if they believe from the evidence beyond a reasonable doubt that the defendant in this case, Roosevelt Moon, in company with another, both having a common design to rob the said J.C. Parker store and J.C. Parker in charge and custody thereof, went to the J.C. Parker store for the purpose of robbery of the store and J.C. Parker and while so engaged to this design his associate, Fedro Pearson shot the said J.C. Parker with a deadly weapon, to-wit: a pistol, either with the formed purpose to kill him or without such intent and as a result of said shot J.C. Parker died, then the jury should find the defendant guilty of murder and it is immaterial whether or not the defendant Roosevelt Moon shot the deceased, and the jury should so find him guilty, even though they may believe that he, the defendant Roosevelt Moon, did not personally fire the shot that killed the deceased."
We see no misstatement of the law in the instruction. Certainly, taken in connection with all the other instructions, the jury were correctly and fairly given the law of the case.
Appellant's codefendant was first tried and convicted. During his closing argument, the county attorney informed the jury of such trial and conviction, to which statement appellant objected and asked for a mistrial. A mistrial was denied, but the judge instructed the jury to disregard the statement of the county attorney. These facts were embodied in a special bill of exceptions signed by the judge.
Appellant assigns and argues as error the action of the court in refusing to enter a mistrial. Although the language used by the county attorney should not have been used, the court's caution to the jury to disregard it, we think, cured any prejudicial effect it might have otherwise had. Shelton v. State, 156 Miss. 612, 126 So. 390.
Affirmed, and Friday, June 10, 1936, fixed as date for the execution of the sentence.