Cook v. State

43 So. 618, 90 Miss. 137

• Court: Mississippi Supreme Court
• Decided: March 15, 1907
• Status: Published

Opinions

Mayes, J.,

delivered the opinion of the court.

We shall not undertake to follow out and discuss each of the errors assigned by appellants, for the reason that many of them are so clearly answered in the record against the contention made that we deem it unnecessary. We shall only discuss the serious questions raised in argument of counsel.

The first error assigned to which we address our attention is that which involves the method in which the jury were drawn from the jury box, who were to serve as jurors during the term of court at which appellant was to be tried,. Ajjpellant moved the court, after the special venire which had been summoned was exhausted, to set aside the regular jury which had been drawn, because of the illegality of the manner in which • they were drawn by the officers charged with this duty under § 2367, Ann. Code 1892. Clements, the chancery clerk, participating in the drawing of this jury, says that the jury box was brought in and placed on the table. It contained five small boxes on the inside, from which they were to draw the jury list. He says he took the boxes out, one at a time, poured the names on a table, and turned the faces of the slips up so that he could see the names and know who the jury would be for that term of court. Every person selected was known beforehand, and this method of selecting the jury was continued throughout, until the entire list had been selected to serve at this term of the court; that he only selected such names as he thought would do well to serve on the jury; that they drew no names from the boxes without knowing who they were placing on the jury. He was asked the question: “Did you pick the parties you wanted ?” A. “Certainly. That is what it was done for.” He was further asked this question: “When you turned the jury box out so you could get the names on the jury, did you turn the names up intentionally, so you could see the names of the men?” A. “Yes, sir; that is the way we have always been doing since I have been here.” Q. “Did you pick the parties you wanted ?” A. “Certainly; that is what it was done for.” Q. “You got the ones you wanted, Mr. Johnson got the ones he wanted, and Mr. Ramsey did likewise, did he ?” A. “I could not say as to them. I got the ones I wanted.” Ramsey, the circuit clerk, was then introduced as a witness, and he corroborated Clements, in that he says he knew when he took the names from the box whom he was drawing, and where they lived, and all about them, and that that is the way this jury was drawn. Johnson is the next witness introduced, and he testifies to about the same thing, with reference to the selection of the jury for this term of court, as is testified to by Clements and Ramsey.

This shows the manner in which the jury was selected. Now, let us compare the methods used by the sheriff, the chancery clerk, and the circuit clerk, in drawing -the jury that was to serve at this term with the .requirements of the law. The legislature has been very careful to guard the manner of selecting jurors in such way as that it is largely a matter of chance as to who shall compose the jury at any term of the court, and we must suppose that the legislature did this for just and wise reasons. If this manner of selecting jurors could stand, there is no need for law upon this subject; but the statutes may be repealed, and the sole discretion as to the selecting of fit and competent jurors committed to the sheriff and clerks of the county. It was never intended that the power of determining who was and who was not fit for jury service should be committed to the judgment of those charged with the duty of drawing the jurors from the jury box for service during a term of court. The guarding of the method by which jurors shall be selected has been a subject of great care by the legislature. By Laws 1896, p. 94, ch. 84, § 1, it is provided that “the board of supervisors at the first meeting in each year, or at a subsequent meeting if not done at the first meeting, shall select and make a list of persons to serve as jurors in the circuit court for the next two terms held more than thirty days afterwards, and as a guide in making the list they shall use the registration books of voters and select a list of names of qualified persons of good intelligence, sound judgment, and fair character!” By this first provision the board of supervisors are required to make a selection of jurors who are to serve at the next ensuing two terms, and in making this list they are required to use the registration books, and to them, in making up their list, is committed the power to select from the list of names qualified persons of good intelligence, sound judgment, and fair character; and this is the only place in the law upon the subject of juries where it is given to anybody to make a selection of persons who are to serve as jurors, and this power is given to the board of supervisors in a very limited way, being safely guarded by requiring them to prepare a list of not less than two hundred, and committing the actual selection of the jury to a different body. By section 2 of this act it ' is provided that “at each regular term of the circuit court, and at a special term if necessary, the judge shall draw in open court, from the five small boxes inclosed in the jury box, slips containing the names of fifty jurors, to serve as grand and petit jurors for the first week, and thirty to serve as petit jurors for each subsequent week of the next succeeding term.” The judge is'not given the power by this section to select from the list prepared by the board of supervisors as provided above such men as may suit him, but he is required to draw from the five small boxes the names of parties who are to serve as jurors. Thus in this section it is seen that the judge has no power to select, but must draw the names as he comes to them. In sec. 4 (p. 95) of the same act, in providing how grand jurors shall be drawn, it is provided that “the name of each juror shall be written on a separate slip of paper, and the name of each supervisor’s district shall be placed in a separate box, hat, or compartment in open court, and there shall be drawn out by a person designated by the judge the number directed by the court.” By § 2359, Annotated Code 1892, it is provided “that the jury list prepared by the board of supervisors, from which the jury who are to serve are to he drawn, shall contain not less than two hundred nor more than five hundred names, unles.s the judge of the district shall direct a greater number to be put on the list.” By sec. 2360, after the list has been prepared by the board of supervisors, it is directed that it shall be immediately delivered by the clerk of the board, to the clerk of the circuit court, and by him carefully filed and preserved as a record of his office, and any alteration thereof shall be treated and punished as provided in case of the alteration of a record. By sec. 2361 it is provided that “the names of persons on the jury list shall be written on separate slips of paper by the clerk of the circuit court, and put in a box kept for that purpose, marked jury box, which shall be securely locked and kept closed and sealed except when opened to draw jurors.”

It will be seen, upon a review of the entire law bearing upon this subject, that the legislature has been very careful to prescribe the method for the selection of juries, so as to take away from every person, or set of officers, the possible power of appointing the body of men who are to try any person’s cause. Thus, to recapitulate, when the board of' supervisors prepare the jury list, from which the jury is to be made up, by the act of 1896 referred to above, they shall select the list of names from the registration books and place upon the list persons of good intelligence, sound judgment, and fair character. By s.ec. 2 of the above act, when the judge draws the jury, he is required to draw the names in open court, and is prohibited from disclosing the name of any juror. By sec. 4 of the act, when the grand jury is to be selected for the term, the names of all the jurors from each supervisor’s district are written on a separate slip of paper and placed in a separate box, containing the names of the jurors from each supervisor’s district, and in open court the names of such as are to compose the grand jury are drawn out, not by the judge, but by some person designated by him for the purpose. By § 2367 of the Annotated Code 1892, on failure of the judge to draw the jury as provided in sec. 2 of the act of 1896, the sheriff, chancery clerk, and circuit clerk are given the power to draw the jury. This high trust is confided, not to one of them, but to the three highest officers of the county, for' the express purpose of having each see to it that the method of securing a fair and impartial jury is not violated. Can it be contended that the great care and caution thus shown by the legislature to secure to litigating parties a fair and impartial jury is but a matter of aimless circumlocution, and not a matter of cautious and careful guarding of a sacred right? Can it be argued, in the face of so cautious and careful guarding of the jury system by the legislature as is shown by the laws they have enacted to perfect a system for the procurement of a fair and impartial jury, thereby to protect the life, the liberty, and the property rights of the citizen, that all this law is to be stricken down by § 2389 of the Annotated Code of 1892, which declares that “all provisions of law in relation to listing, drawing, summoning, and impaneling juries are directory merely” ? We cannot so decide. It was intended by the legislature to carefully and sacredly guard the right that each litigant had to have his cases heard by a.fair and impartial jury, selected from the body of the county and in a fair and impartial way. No man, or set of men, under the law as it is written, have any power to determine the fitness of a party to be drawn as a juror when his name has been placed in the jury box by the board of supervisors. The law is careful to require that a large number of names be placed in the jury box, from which the jury are to be drawn, the very purpose of which was to secure litigating parties against the possibility of having any person place upon the jury such persons as he might deem proper in any case. It is of the very essence of the purity of the jury system that this method be followed as directed by the- legislature, to the end that no unfairness can possibly take place in the selection of juries. We would not affirm any case, either civil or criminal, where the verdict was rendered by a jury selected as this one was, if there had been a timely challenge. To do so would be to crush out the spirit of the jury system, and to establish a rule that would place litigating parties at the mercy of the honesty and wisdom of the parties who drew the jury.

We desire to say that in the history of this court there has never been a record brought to the court disclosing a more flagrant violation of the law with reference to the selection of jurors than is presented in this case. We feel it to be the duty of the court to make this comment in the light of'this record, to the end that such practice and such method may be put an end to. It is evident from the record that the officers charged under the law with the duty of selecting the jury to serve during the term of this court, intended no wrong, but the practice indulged in by them, if sanctioned, would destroy the sanctity of a jury trial and make the administration of the laws under the jury system farcical. The constitution declares “that the right of trial by jury shall remain inviolate,” and the legislature has undertaken to carry out this declaration of the constit-uion by guarding the manner of the selection of the jury in every way possible, to the end that a fair and impartial jury may be secured, and their selection not be intrusted to a single individual, or individuals.

But in this case the defendant has suffered no prejudice because of the illegal way in which this jury was selected, and therefore this case should not be reversed. We will proceed now to show why appellant was not prejudiced by the illegality above referred to. The record shows that when the case was called for trial appellant asked for a special venire. This special venire was granted and duly summoned, and after exhausting the special venire, when under the law it became the duty of the judge to call the jurors summoned for the week, the judge sustained a motion to quash the panel drawn for the week, and declined to let any jurors from the regular panel be put on the jury to try defendant, and directed the sheriff to summon from bystanders a sufficient number of good and lawful citizens of the county, duly qualified voters, to complete the panel to try the case. It will be seen from this that the court used in the trial of this case none of the jurors selected in the manner which is hereby declared to be illegal, but upon the application of appellant in the first place summoned a special venire, and, when this was exhausted, ignored the regular panel and ordered the sheriff to summon in bystanders. Therefore appellant was in no way prejudiced by the illegal manner in which this jury was selected by the officers selecting the jury to serve at this term of court. He was not indicted at this term, but was indicted some three years before; that is to say, in 1903, by a different jury. And as to the jury which indicted him there is no objection urged, so that none of these jurors participated in any way in the indictment or trial of appellant, and he cannot, therefore, claim to be prejudiced by this illegal method of selecting a jury.

We now come to the next. question involved in this case; that is, as to the motion to quash the jury box prepared by the board of supervisors, from which the special venire was drawn who were to try this case. The case of Purvis v. State, 71 Miss., 706, 14 South., 268, cited by counsel for appellant, has no application here. It is shown in the Purvis case, supra, as stated in the opinion of the court, “that the board of supervisors had, through their ignorance or obstinacy, disregarded the mandate of § 2358, Ann. Code 1892, in preparing the jury list from which the jury box was to be made.” There is no such question presented here. It is clearly shown that the hoard of supervisors, in compliance with sec. 1, ch. 84, p. 94, of the laws of 1896, had prepared, at its first meeting in the year 1906, a list of persons to serve as jurors in the circuit court. It is true that the box in which these names were placed may not have literally corresponded with the requirements of the law, but it does in all substantial matters. It is shown that this box was an old ballot box with a sliding top, and that inside this box were placed five little boxes, in which the names of the respective jurors for the different supervisors’ districts were placed, and that these little boxes did not have tops on them; but the hole in the ballot box was sealed with a paper cover, and the box was kept locked, and there was such a substantial compliance with the law as is contemplated by § 2389, Ann. Code 1892, providing that “all provisions of law in relation to the listing, drawing, summoning, and impaneling of juries are directory merely.”

It is also objected to that the jury list was prepared by the sheriff and clerk of the chancery and circuit courts more than fifteen days before the term of court convened, when the law provides that .the selection shall be made within fifteen days of the term of court; and this is urged as a reason why this jury should be quashed. As we have shown above, the jury selected at this time had nothing to do with the trial of appellant in the first place, and in the next place this is but another .irregularity which is fully covered by the section of the code above quoted. This section of the statute — that is to say, sec. 2389 — was enacted to prevent the selection of jurors from becoming vitiated .by such irregularities. It was not intended by the legislature, however, that fairness in the selection of jurors should not be preserved; and whenever there is an invasion of this right, -and whenever unfairness in the method of securing jurors is shown to exist, a substantial right of the litigant is invaded, and this court, notwithstanding sec. 2389, which is merely aimed at irregularities, and not intended to cover up deliberate violation of the law, will set aside the verdict of any jury deliberately selected in a manner that is in violation of the law, whenever there is timely objection made by a party in either a criminal or civil proceeding.

This case is fully covered by the case of Campbell v. State (Miss.), 17 South,, 441, and in many respects is very similar to it, and the court properly overruled the motion to quash the jury box. In order to warrant the court in quashing a jury box, it is not enough to show that it would be possible for names to be substituted for the list prepared by the board of supervisors; but the testimony must in fact show that a fraud has been committed, or show such flagrant violation of the jury laws as that the acts proven would constitute a fraud in law. The attention of the officers of Calhoun county having been directed by the decision of this case to the many irregularities existing in their method of selecting juries, it is to be hoped that the errors complained of in this record will not be repeated, or longer continued in existence. If they are, there is a remedy under the criminal laws of the state.

The next assignment of error is that the court erred in refusing to sustain challenges for cause to Jurors Langston, Shippy, and Reynolds, thereby forcing appellant to peremptorily challenge the jurors. We have most carefully read the record containing the examination of these jurors, who it is charged were incompetent, and we have examined all of the authorities cited by counsel, and are unable to say that the action of the judge, was incorrect in refusing to set aside these jurors for cause. In his direct examination Langston states positively that he has no opinion in reference to this case, and that there is no reason existing, that he knows of, to prevent him from doing absolute justice between the state and the defendant, and giving defendant a fair and impartial trial. Counsel for appellant in his cross-examination succeeds iu showing that this juror had heard one Pryor, a former juror, talk about the case, and Langston states that Pryor made án impression on his mind in reference to the case; but on reviewing his entire testimony, taking all that he said together, we are unable to say that the action of the trial judge in refusing the challenge for cause was not correct. Langston states that, if taken on the jury, he could try the case fairly and impartially according to the law and' the testimony, and that his only information consists in what he heard Pryor say and in rumors. His answers- are frank and fair, showing no bias in any way whatever, and he repeats that he is perfectly impartial and can give defendant a fair trial. The same thing characterizes the testimony of. Juror Shippy, who says that he can give the defendant a fair and impartial trial, and, though he has heard many rumors of the case, he has heard none of the testimony, and that the rumors which he has heard will not be allowed to enter into or be considered by him, in determining the guilt or innocence of the defendant. Shippy states that he would try him according to the evidence adduced in the case, and would not try him in any other way; that he has no fixed opinion about it. Juror Reynolds’ testimony is along the same line, and we are impressed with the belief, after carefully reading the examination of these jurors, that the action of the circuit judge in refusing to challenge these jurors for cause was not error. In a case of this notoriety, it would be strange indeed if there existed many qualified voters in the county of Calhoun who had not heard of this killing. It is only essential to the securing of a fair and impartial trial that a juror be able to discard the rumors which he may have heard, or the hearsay testimony, and be governed by the testimony adduced at the trial, and this these jurors have said they could and would do.

In the case of Gammons v. State, 85 Miss., 103, 37 South., 609, Justice Truly, delivering the opinion of the court, in an able and exhaustive discussion reviews all the authorities on the subject of the competency of jurors, and. in the light of this case we feel that it would be idle to again enter upon a discriminatory discussion of this subject. After a review of all the authorities of our court on this subject, he says: “An examination of the former opinions of the court on this subject simply serves to demonstrate the futility of all effort to'frame any definite rule to be followed in passing upon the competency of jurors. The only general proposition really deducible from these opinions is that the decision in every instance must depend on the varying circumstances of the particular case. In determining the question of the competency as a juror, the court is not bound by the oath of impartiality made by the juror, for no juror can constitute himself the judge of his own competency, but should take into consideration the demeanor of the proposed juror; his answers, as indicating candor, or a desire to evade the question 'or conceal the truth; the impression or opinion which has been formed or expressed; the extent of knowledge of the facts of the case; the sources from which the information came — and from these, and from the many intangible, yet potent, elements which constitute personality, decide upon the existence of bias or animus either for or against the accused.” In the language of the court in the Gammons case, supra, the question of the competency of a juror “in every instance must depend upon the varying circumstances in each case.” The force and truth of this statement is readily seen when the authorities of our own state are examined and sifted. In the light of this record we cannot say that the circuit judge was wrong in holding that Jurors Langston, Shippy, and Reynolds were competent jurors. In the case of Sam v. State, 13 Smed. & M., 189, it was said that “every case must depend in some degree upon its own peculiar facts. Circumstances may exist which render a departure from the rule necessary and unavoidable, which in a different state of case would be inflexibly adhered to. In some cases of great notoriety and of general concern it might be impossible to find men in the vicinage who had not formed some opinion of the matter.” It would hardly be possible to find many qualified jurors in Calhoun county who had not heard more or less of this case. We think the testimony of these jurors clearly brings them within the provisions of § 2355 of the Annotated Code of 1892, and that the testimony fails to show that these jurors had any such opinion as disqualified them as jurors. As was said in the case of Posey v. State, 86 Miss., 141, 38 South., 324: “It is vitally important that the cases be investigated by a fair and impartial grand jury, and be tried by a fair and impartial petit jury; but beyond and above this the laws are intended to sub-serve public welfare, and upon nothing is the public welfare more dependent than an unfaltering; strict, and impartial enforcement of the 'criminal laws.” We are constrained to say that this defendant was granted a fair and impartial trial.

We do not deem it necessary to notice any other assignment of error in this case. The court was liberal in the granting of its instructions, and we see no error committed in them in any way.

Finally, it is argued by counsel for appellant that the jury box from which the special venire was drawn should have been quashed, for the reason that the action of the officers charged with the duty of selecting the jurors from the box was illegal, and-therefore to the extent that they drew names from the box they disqualified the names of persons whom the defendant had a right to have in the box; that the withdrawal of these names lessened his chances of procuring the same jury that he would have had if these names had been left in there. This contention is good metaphysics, but too refined to be applied to the practical administration of law. Every man whose name is in the jury box is subject to jury duty. No person on trial has a vested right in any particular juror. He has an interest in seeing to it that the jury are selected according to the forms of law, and that a jury is not selected because it is for or against a particular litigating party. The illegal taking out of this jury did not vitiate this jury ])Ox, it being in all other respects lawful. No man has a vested right in any particular juror, nor in any particular number of jurors in the box. The original number required by law is two hundred names, and at the first term of the court this number may be reduced to fifty or sixty, by drawing special venires and otherwise. It would not be argued that because these names were taken out the remaining ones were not qualified jurors, or that a party being tried would have any cause to complain because there was not the original two hundred in the box; neither does it vitiate the box because eighty names may have been unlawfully taken out. The remaining ones are competent. If there was any testimony in this record from which it might be reasonably inferred that it was the purpose of taking out these names in order to thus disqualify those taken out, and that the names left in the box had been selected and purposely left in the box in order that they might constitute the jury, a different question would be presented; but this is not the case here, nor is there any such proof. The officers picked the names out of the box that they wanted on the jury, but did not molest the other names that the board of supervisors had placed in the box as qualified jurors. Criminals are not to be tried on the doctrine of chances, or on metaphysical discussions of the law, but upon the facts in their case. All that they can ask is a fair and impartial trial before .a fair and impartial jury. The case of Nealon v. People, cited in 39 Ill. App., 481, is a case from a subordinate court, standing pretty much alone in the rule it announces, applied to its interpretation of its own statute, and is too refined in its discrimination for practical use. Commonwealth v. Valsalka, 181 Pa., 17, 37 Atl., 405; Rolland v. Com’rs, 82 Pa.. 306, 22 Am. Rep., 758; Sumrall v. State, 29 Miss., 202; Head v. State, 44 Miss., 731; People v. Coffman, 59 Mich., 1, 26 N. W., 207; State v. Hensley, 94 N. C., 1021; People v. Jackson, 111 N. Y., 362, 19 N. E., 54. The authorities cited above, including the cases from our own state, amply sustain the above ‘announcement of the law.

Affirmed.