Hays v. State

50 So. 557, 96 Miss. 153

• Court: Mississippi Supreme Court
• Decided: October 15, 1909
• Status: Published

Opinion

SMITH, J.,

delivered tbe first opinion of tbe court;"tbe one afterwards vacated.

Appellant was convicted of murder in tbe court below, sentenced to life imprisonment in tbe .penitentiary, and appeals to this court.

After verdict, a motion in arrest of judgment was made on tbe ground that tbe grand jury which found tbe indictment on which be was tried was not sworn. Tbe minutes of theN court at which tbe indictment was found contain no statement showing that tbe grand jury was sworn. It has long since been settled in this state that a grand jury must in fact be sworn before it is legally organized, and that this fact must affirmatively appear from tbe record. Cody v. State, 3 How. 27; Abram’s case, 25 Miss. 589; Foster’s case, 31 Miss. 421. This defect, being jurisdictional, is not cured by sections 1413, 1426, and 1427 of the Code of 1906 — in fact, could not be cured by legislative enactment. Arbuckle v. State, 80 Miss. 15, 31 South. 437.

The indictment contains the usual caption, reciting that the .grand jury had been “duly elected, impaneled, and sworn”; and it is argued that this recital cures the defect in the record. It has, however,, long since been decided otherwise. See authorities supra. “What ought to be of record must be proved by record, and by the right record, made at the right time and in the right place.” Hughes, Grounds and Rudiments of Law, p. 966.

The judgment of the court below is reversed, the indictment quashed, and the defendant held to await the action of a legally organized grand jury.

Afterwards, on suggestion of error by the state, the foregoing opinion was vacated.

Smith, L, delivered the opinion of the court in response to the suggestion of error.

We are satisfied that our former opinion in this ease was erroneous, and that the judgment of the court below ought to be affirmed. The cases of Cody v. State, 3 How. 27; Abram v. State, 25 Miss. 589, and Foster v. State, 31 Miss. 421, were decided prior to the enactment of the statutes' now composing sections 1413, 1426, and 1427 of the present Code. In those cases the court, in effect, declined to apply the maxim1, “Omnia prcesumuntwr rite acta ” to matters of this character, and held that it must affirmatively appeal- from the record that the grand jury was in fact sworn.

The effect of the statutes above referred to is to change this rule, and now, where the record is silent as to matters of this •character, and no objection thereto has been made before ver-diet the court is required to presume that the same have been rightfully and regularly done. Ex parte Phillips, 57 Miss. 357; Spivey v. State, 58 Miss. 743. This is true, even though, the matter complained of is jurisdictional in its nature. The statute does not provide that the court may proceed with the trial of the cause without doing those things necessary to invest it with jurisdiction, but simply that, after the trial has proceeded to verdict without objection, the court will conclusively presume, so far as those matters referred to in the statute now under consideration are concerned, that the same have been rightfully and regularly done. In other words the defendant is not cut off from raising the jurisdictional question, but the statute merely limits the time in which the same may be raised.

There being no reversible error, if error at all, in the other matters complained of, the suggestion of error is sustained, the judgment heretofore rendered in this court is vacated, and the judgment of the court below is affirmed.