Atkinson v. State

100 So. 391, 135 Miss. 462, 1924 Miss. LEXIS 91

• Court: Mississippi Supreme Court
• Decided: June 9, 1924
• Docket: No. 23766
• Status: Published

Opinion

Sykes, P. J.,

delivered the opinion of the court.

The appellant, Frank Atkinson, was indicted, tried, and convicted in the circuit court of Lauderdale county, of the murder of R. II. Bryant and sentenced to be hanged, from which judgment this appeal is here prosecuted.

The appellant Atkinson and Clyde Greer were jointly indicted. A severance was had. Greer was tried first, convicted and sentenced to he hanged, and that judgment was affirmed by this court several weeks ago.

It is unnecessary to recite the material facts relating to the killing; suffice it to say that the testimony of the state made out a case of murder.

Upon motion the jury box of Lauderdale county was quashed; the grand and petit jurors in attendance were discharged. The court then ordered the clerk to issue a venire facias commanding the sheriff to summon fifty qualified persons to act as jurors, and that the sheriff summon these men in proportion of five men from beat one and one from each of the other beats. The order of the court commanded the sheriff to summon twenty-six persons for jury service from district No. 1 and six persons from each of the other supervisors’ districts to serve as grand and petit jurors. This order of the court was obeyed by the sheriff. The grand jury was organized by the court directing the sheriff to call eighteen jurors, five from beat one and one from each of the other beats. The grand jury was composed of ten men from' district No. 1 and two men each from the other four districts. All of this was seasonably objected to by the defendant through his counsel, by objections, motion to quash, and otherwise before the grand jury was impaneled. All of which objections were overruled. The grand jury then returned this indictment.

It is contended by the appellant that it was the duty of the court, the sheriff, and the clerk, in summoning this venire, to have complied substantially with the laws relating to the drawing of the electors to serve on the juries by the board of supervisors. That is to say, that the venire in this case should have been drawn having in view the number of qualified electors in the respective districts, and that this venire should have been proportioned in accordance with the population of the respective districts. In other words, that the circuit judge, sheriff, and clerk in drawing this venire should have substantially complied with and followed section 2180 of Hemingway’s Code, and that this was not done.

It is also contended that the names of these jurors should have been drawn in regular order from the five boxes, instead of drawing five from beat one and one from each of the others.

When the regular jury boxes of this court were quashed, it thereby became the duty of the circuit judge to have other jurors summoned in accordance with section 2207, Hemingway’s Code (2714, Code of 1906). This section alone is the one involved in this case. It provides that in cases of this kind “the court shall direct the requisite number of persons, qualified as jurors, to be summoned to appear at such times as the court shall appoint, and the court shall thereupon proceed as if the jurors had been regularly drawn and summoned. ’ ’ This statute provides for an emergency of this character, and under it the court is not required, either in having summoned or in organizing the grand and petit juries, to follow the statutes which relate to the drawing of juries by the board of supervisors. The only statute applicable is section 2207, Hemingway’s Code, and it makes no difference under that section from what districts jurors are summoned or the number of jurors from each district who may sit upon either the grand or the petit juries. We find no error therefore in the action of the learned circuit judge in this matter.

It is also contended that the special oath was not administered to the jurors in this case as provided by section 1241, Hemingway’s Code. The stenographer’s notes do not show that this oath was administered. However, the judgment of the court recites that the jury was sworn. There was no objection made in the record to any failure to swear the jury. This case comes squarely within the rule announced in Hayes v. State, 96 Miss. 153, 50 So. 557, and McFarland v. State, 110 Miss. 482, 70 So. 563. There is therefore no merit in this objection.

There are certain objections to the introduction of testimony which have received onr consideration. As a matter of fact, all of these questions relating thereto were settled in the case of Greer v. State (Miss.), 99 So. 905, adversely to the contention of the appellant.

The judgment of the lower court is affirmed, and Friday, July 25th, is fixed as the date of execution.

Affirmed.