Smith v. State

61 Miss. 754

• Court: Mississippi Supreme Court
• Decided: April 15, 1884
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

1. The court rightfully sustained a demurrer to the plea in abatement to the indictments which set up that the same had been foimd by the grand jury without the examination of any sworn testimony. The authorities on this subject are conflicting, but we prefer those which deny that such an inquiry is admissible.

Our statutes remit such questions wholly to the grand jury, who swear their own witnesses in secret. It would hence be impossible to controvert such a plea, nor is there any evidence that such inquiry was ever entertained in the history of our jurisprudence, though it has been several times adverted to. King v. State, 5 How. 730; Rocco v. State, 37 Miss. 357 ; Purr v. State, 53 Miss. 425.

Evidently it was never supposed here that on this ground an indictment could be quashed or abated, and such is the law elsewhere. 2 Hill (S. C.) 288; 52 Iowa 103; 24 Ind. 151; 3 Zabriskie 49 ; 16 Conn. 458.

In 2 Blatcliford 439 it was held that such inquiry could only be entered into where witnesses before the grand jury were required to be sworn in open court. No such law here prevails. On the contrary, with us the grand jury always swear their own witnesses.

2. The court below looked into the question whether the jury box was destroyed as such because it contained a few fraudulent names and had the same purged of these names, and after that the venire was drawn therefrom. There was no error in this.

3. In Thompson’s Cases, 58 Miss. 62, it was settled, and we think lightly, that it was not” error in capital cases to compel the accused to challenge the jurors as presented, since in such cases he must always know who will be presented, and therefore he has no right to insist upon the whole twelve being presented at one time.

4. It was in the discretion of the court to set aside the juror Truax when it was discovered that he was a cousin of a party indicted for the same offense as the prisoner, and also the juror who acknowledged that “he had a sympathy for the boys” on trial. The court always has power to impanel an impartial jury, and when it is clearly seen that such only was the effect of the ruling it will be sustained. Smith v. State, 55 Miss. 513 ; McGuire v. State, 37 Miss. 369.

5. The allowing of a witness to be examined who is within the room while all others are under the rule is a matter wholly within the discretion of the court, and, as we have several times decided, is not assignable for error.

6. The court closed while this case was under consideration, and thereupon the term was regularly prolonged by the necessary order by virtue of § 2292 of Code of 1880. It was entirely proper, therefore, to continue the trial on the next Monday, as was done, nor did the fact that such day was the time fixed for a special term in that county, under the act of the legislature, in any manner affect the result. It is impossible to see how the accused were injured by such trial.

Affirmed.