Hunt v. State

Chalmers, J.,

delivered the opinion of the court.

The entry by the clerk of the verdict of the jury is in these words : “ Thereupon came the district attorney, who prosecutes the pleas of the State, and Robert Hunt, the defendant herein, in his own proper person, and the said defendant, being solemnly arraigned and charged on the indictment herein, pleaded not guilty as charged, thereupon came a jury of good and lawful men, to wit, Hal Yerger, etc., etc.,” naming with Mr. Yerger eleven men only— that is to say, the clerk recites that there came a jury of good and lawful men, to wit, eleven men. What is the effect of this ? Must the judgment sentence be reversed because the record affirmatively shows that the defendant was convicted by eleven men only ? We said in Phillips' Case, 57 Miss. 357 ; Spivey’s Case, 58 Miss. 743 , and Flemming’s Case, 60 Miss. 434 , that by § 1443 of Code of *580 1880, and by similar laws m preceding codes, no ease could be reversed in this court by reason of any error or omission in the record even as to jurisdictional facts, and that, therefore, when the error consisted of an omission to show even such a fact, we would assume that such fact existed unless the record affirmatively showed that, in fact, it did not exist. Whenever, therefore, there was a mere silence on the subject we must presume under the statute that the necessary jurisdictional facts existed in the court below.

It is evident that the fact not contained in this record, to wit, that there were twelve men on the jury, was jurisdictional in its character.

The defendant, on a charge for a felony, cannot consent to a trial by less than twelve men. If he does so consent, such consent is void and will be ignored in the appellate court. There can be no valid jury trial by less than twelve men and a consent to that effect by a criminal is absolutely void. Byrd v. State, 1 How. (Miss.) 163; Carpenter v. State, 4 How. (Miss.) 163; Lewis v. Jarrett, 5 How. (Miss.) 434. Such is the settled law of this court. Is the present an instance only of an omission to show that there were twelve men on the jury, or is it a case where the record affirmatively shows that there were eleven only? If it was merely an omission to show anything on the subject the cases quoted above would govern it, otherwise not.

It is to be remarked that no motion on the subject was made in the court below, and we have quoted above all that the record shows on the subject. In Larillian v. Lane, 8 Ark. 372 , and in Foote v. Lawrence, 1 Stew. (Ala.) 483, it was held that the clerk made the record at least contradictory by reciting that “ a jury ” came, and then by enumerating only eleven men as composing it, since every jury ex vi termini imports that there were twelve men, and that in such case the court would assume that the clerk was right when he said that “ a jury,” to wit, twelve men, came, and wrong when he named only eleven as composing it.

Though in several of our cases it seems understood that the word “jury” necessarily imports twelve men, it is clearly decided by several cases, that the.- court must reverse when the clerk uses that *581 word, and at the same time affirmatively certifies that less than that number composed the panel which tried the particular case. Dixon v. Richards, 2 How. (Miss.) 771; Bone v. McGinley, 7 How (Miss.) 671,and cases cited above; Thompson and Merriam on Jury Trials, §§ 5 and 6, et seq. We see nothing in § 1443 of code or in the cases above referred to wjhich alters the rule announced, and, therefore, because the record before us affirmatively shows that the accused was tried by less than twelve men we must reverse and remand for a new trial.