Opinion
No. 27829.
February 4, 1929.
1. JURY. Statute, declaring jury laws to be directory, undertakes only to cure irregularities and defects in listing, drawing, summoning and impaneling juries ( Hemingway's Code 1927, section 2365).
Code 1906, section 2718 (Hemingway's Code 1927, section 2365), declaring jury laws to be merely directory, undertakes only to cure irregularities or defects occurring in listing, drawing, summoning, and impaneling of juries.
2. JURY. Court's action in hand-picking list of names for jurors, from which jurors trying defendant were selected, held not cured by statute ( Hemingway's Code 1927, sections 2361, 2365).
Action of court in hand-picking list of names, from which jurors were to be selected who tried defendant, was without authority of law, under Code 1906, section 2714 (Hemingway's Code 1927, section 2361), and was not cured by Code 1906, section 2718 (Hemingway's Code 1927, section 2365), declaring jury laws to be directory merely.
APPEAL from circuit court of Warren county, HON. E.L. BRIEN, Judge.
Chaney Culkin, for appellant.
Sec. 2334, Hem. Code 1927, provides how the list of jurors shall be procured, and sec. 2361 of the same Code provides the method for procuring jurors when there are none, or not a sufficient number, in attendance. Sec. 2365 provides that the jury laws shall be directory only. However, this statute does not authorize a total departure from the provisions of the statute providing the manner of selecting jurors. It is possible that, under the provisions of the last-named statute, the action of the trial judge might meet with the approval of this court. If, in selecting the jurors, there had been any effort whatsoever on his part to follow the provisions of either of the above statutes on the subject. In other words, if there had been an irregular attempt on his part to follow the statute, then such conduct might be cured by the latter statute declaring the jury laws to be directory only. The action of the court, however, being a complete departure from any and all provisions of the statute, and there being no effort whatsoever to follow any statute on the subject, the latter section could not have any application.
In Ellis v. State, 142 Miss. 468, 107 So. 757, there was a motion to quash the jury panel on the ground that the supervisors, in selecting the names for the jury boxes, entirely ignored the provisions of the statute. The motion was overruled, and this court held, on appeal, that there having been a total departure from the statute providing the manner in which juries shall be drawn, the action of the supervisors was not cured by the statute declaring the jury laws to be directory only. A similar question was presented in Lee v. State, 138 Miss. 474, 103 So. 233. See, also, Cook v. State, 90 Miss. 137, 43 So. 618; Shepherd v. State, 89 Miss. 147, 42 So. 544.
J.A. Lauderdale, Assistant Attorney-General, for the state.
Counsel for appellant did not contend in the trial court, neither do they contend in this court, that the jury which tried appellant was not a fair and impartial jury. After the motion to quash the panel was overruled counsel for appellant accepted the jury without objection; did not challenge them or any of them for cause. They waived the error of the court, if any, in overruling the motion to quash. In McAllister v. State, 147 Miss. 180, this court held that where it appeared from the record that the appellant accepted the jury, without objection, which finally tried the case, that a complaint that the jury was not fair and impartial was without merit. Counsel for appellant cites Cook v. State, 90 Miss. 137. The special venire from which the petit jury was selected was drawn from the same box. Counsel for Cook filed a motion to quash the jury box from which the special venire was drawn. The court overruled the motion and his action in so doing was assigned as error. The court held that it appeared from the record that the defendant had a fair and impartial jury and that "all that they can ask is a fair and impartial jury."
In Simmons v. State, 109 Miss. 605, text 612, the court held as follows: "The twelve men impaneled were admittedly qualified jurors, fair and impartial in this particular case. Not one of them is challenged for cause. The only objection raised to the jury was by motion to quash the entire venire because of the alleged failure on the part of the board of supervisors to comply with section 2688 of the Code. Section 2718 of the Code provides that our jury laws are directory, and this section, in the absence of a showing that appellant has in fact been injured by the overruling of the motion to quash the venire, cures any alleged error of the board of supervisors or the court below in the `listing, drawing, summoning, and impaneling' of the jury in question." In Atkinson v. State, 135 Miss. 462, the court holds that where the jury box is exhausted, sec. 2207, Hem. Code 1917, sec. 2361, Hem. Code 1927, governs. This section provides that "the court shall direct a requisite number of persons qualified as jurors to be summoned to appear at such time as the court shall appoint." In the case at bar the court followed this statute. The only question that could possibly be raised is whether it was the duty of the court to incorporate in the directions the names of the prospective jurors, or whether this duty should be left to the sheriff. In West v. State, 80 Miss. 710, the court holds that the sheriff may select the names of the prospective jurors from the poll books of the county. The court is presumed to be fair and impartial. The sheriff is an executive officer. His duties are to enforce the law. In the case at bar the court selected the jurors. The record shows affirmatively that he did this in a fair and impartial manner; that he selected fair and impartial jurors, and that he selected them in order that the state and all of the defendants should have a fair and impartial trial as is guaranteed to them under the law.
The case of Ellis v. State, 142 Miss. 468, cited by appellant, is with reference to the method the prospective jurors were selected to be placed in the jury box. Lee v. State, 138 Miss. 474, is with reference to the right of the defendant to have a jury drawn from the jury box. The Lee case is not applicable here for the reason that it is shown in this case that the jury box was exhausted. Shepherd v. State, 89 Miss. 147, is with reference to the organization of the grand jury and is not applicable here. When a grand jury is impaneled by the court the defendant does not have the right or power to examine them with reference to their qualifications. The rule is different when a petit jury is being selected. The defendant does have a right to examine prospective petit jurors, to challenge them peremptorily or for cause, and as hereinbefore stated when these rights are exercised and the jury is accepted the defendant cannot complain.
Appellant was convicted in the county court of Warren county of the crime of retailing intoxicating liquor, and sentenced to pay a fine of two hundred fifty dollars, and serve thirty days in the county jail. From that judgment he appealed to the circuit court of that county, where the judgment of the county court was affirmed. From that judgment of the circuit court, appellant prosecutes this appeal.
The only question in the case is whether the county court erred in overruling appellant's motion to quash the panel from which the jury that tried him was selected.
Appellant's motion to quash the panel, from which the jury was selected that tried him, was made, and overruled by the court before the selection and impaneling of the jury. The ground of the motion was that the panel, from which the jury was selected, had not been drawn as required by law. A jury had been drawn, summoned, and impaneled to serve during the week appellant was tried and convicted, and on the day before appellant was tried and convicted, in a similar case to that of appellant's, had returned a verdict of "not guilty." Thereupon the court discharged that jury for the week, and the judge of the court himself, from the poll books, selected eighteen names, and directed the sheriff of the county to summon them to serve as jurors for the remainder of the week, which command of the court the sheriff obeyed, and, from the eighteen persons so summoned, the jury that tried appellant was selected.
In overruling appellant's motion to quash the panel, the court put into the record his reasons for so doing, as follows:
"Four out of the five compartments of the jury box having been completely exhausted and there not being a sufficient number of names of persons qualified to serve as jurors, left in the jury box from which to draw the number required, and much difficulty having been experienced in the calling of bystanders as jurors heretofore, the court, after having excused and discharged a panel of twelve jurors, for reasons obvious and apparent, as well as justified in the mind of the court, on a former day of the term, and before the calling of this case for trial, proceeded to select, without bias or prejudice, in a fair and impartial manner, from the poll books of Warren county, the names of eighteen qualified male electors who are of good intelligence, sound judgment and fair character, and directed the sheriff to summon them to serve as jurors during the remainder of this week of this term of the court; the names of those reporting to the court for service as jurors out of the number selected by the court and summoned, are as follows:
"After these had been sworn and qualified, the following regular jury was selected and impaneled, for the remainder of the week, to-wit: . . .
"The court had no other purpose in any action taken, than to secure a fair and impartial jury from the body of male qualified electors of the county so as to insure the state and all defendants such a trial as is guaranteed under the law.
"For the same reasons before stated, the jury impaneled on the first day of the term, was drawn, selected and summoned in the same manner, as shown for those who were summoned after the discharging of the jury named in the motion of counsel for the defendant."
Under the County Court Act, sections 2 and 8, chapter 131 of the Laws of 1926 (Hemingway's Code of 1927, sections 726 and 735), the practice, procedure, and the manner of selecting, summoning, and impaneling juries for the county court in criminal cases and cases cognizable at common law, of which the county court is given jurisdiction by the act, are the same as provided by law for the circuit courts.
Section 2714, Code of 1906 (Hemingway's Code of 1927, section 2361), provides as follows: "If at any regular or special term of a circuit court it appear that jurors have not been drawn or summoned for the term, or for any part thereof, or that the jurors have been irregularly drawn or summoned, or that none of the jurors so drawn or summoned are in attendance, or not a sufficient number to make the grand jury and two petit juries, the court shall immediately cause the proper number of jurors to be drawn from the box and summoned, or, if there be not a jury box to be drawn from, the court shall direct the requisite number of persons, qualified as jurors, to be summoned, to appear at such time as the court shall appoint, and the court shall thereupon proceed as if the jurors had been regularly drawn and summoned."
Section 2718, Code of 1906 (Hemingway's Code of 1927, section 2365), provides: "All the provisions of law in relation to the listing, drawing, summoning and impaneling juries are directory merely; and a jury listed, drawn, summoned or impaneled, though in an informal or irregular manner, shall be deemed a legal jury after it shall have been impaneled and sworn; and shall have the power to perform all the duties devolving on the jury."
Appellant contends that the action of the county judge, in selecting the names himself from which the jury was drawn that tried appellant, vitiated the whole panel; that the county judge, where there is no jury box, instead of selecting such names himself to be summoned by the sheriff, should have directed the sheriff to go to the body of the county and himself select and summon the required number of competent persons. While the state's position is that, conceding the statute was violated in that respect, appellant had no right to complain, because such violation of the statute was cured by the statute last above copied, declaring that the jury laws shall be directory merely.
Without hesitation we hold that the action of the judge of the county court in hand-picking the list of names from which the jury was to be selected for the balance of the week of the court was without any authority of law, although no doubt prompted by the best of motives; that on the contrary it was squarely in the face of our jury laws. Therefore, the question is whether or not that action of the court was cured by the statute declaring all jury laws to be merely directory. The action of the court complained of was a total departure from our statutes prescribing the manner of selecting, summoning, and impaneling the juries. The statute declaring jury laws to be merely directory only undertakes to cure irregularities and defects occurring in the listing, drawing, summoning, and impaneling of the juries. The statute was intended to cover cases where there had been an attempt to follow the jury laws, and a departure therefrom. It has no application to this case, where there was no attempt whatever to obey the jury laws. The action of the county court, therefore, was not an irregularity; it was a procedure wholly beyond and outside of the law — a proceeding directly in the face of our statutes. The curative statute has no application to such a case. Shepherd v. State, 89 Miss. 147, 89 Miss. 147, 42 So. 544, 10 Ann. Cas. 963; Cook v. State, 90 Miss. 137, 43 So. 618; Lee v. State, 138 Miss. 474, 103 So. 233; Ellis v. State, 142 Miss. 468, 107 So. 757.
Reversed and remanded.