Herrington v. State

53 So. 783, 98 Miss. 410

• Court: Mississippi Supreme Court
• Decided: October 15, 1910
• Status: Published

Opinion

Smith, J.,

delivered the opinion of the court.

The defendant was indicted and convicted in the court below for the unlawful sale of intoxicating liquor. The principal witness for the state, and the one upon whose testimony the indictment was found, was one Jordan Turner. The name of this witness was given to the district attorney by. the sheriff of the county, who claims to .have seen the witness with a bottle of liquor shortly after the alleged purchase thereof. When this witness appeared before the grand jury, neither the foreman thereof nor the district attorney were able to elicit from him any information relative to the alleged sale, although he was threatened with imprisonment. Thereupon the sheriff was sent for. When he came into the grand jury room, he reminded the witness of what he had seen, remained in the room during the remainder of the examination of the witness, and conducted a part of it himself. The result of this was that testimony was obtained from the witness upon which the indictment was found. A plea in abatement was filed setting up these facts. This plea seems to have been treated as a motion to quash, and was by the court overruled.

It is improper for a witness before the grand jury to be examined by any one other than members of the grand jury and the district attorney. It is also improper for any outsider to take any part in the deliberations of the grand jury. Durr v. State, 53 Miss. 425; Wilson v. State, 70 Miss. 595, 13 South. 225, 35 Am. St. Rep. 664; Welch v. State, 68 Miss. 341, 8 South. 673. Without the •assistance of the sheriff, this evidence would not have been obtained, and the indictment could not have been .found.

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