Steele v. State

1. Criminal Law. Juries. Special venire. Talesmen. When the whole record shows that the accused was not prejudiced thereby, it is not reversible error in á capital case to refuse, both before and after exhausting the regular venire, to receive as a juror a member of the special venire who was absent on the call thereof, but present when offered by the defense, and to thereupon order talesman to be summoned. 2. Same. Accused as witness. Burdens. A defendant in a criminal case, who voluntarily becomes a witness, assumes the incidents and burdens attaching to that character. 3. Same. Testimony of the accused. Sis cross-examination thereon. Code 1892. 1 1741. Act February 27, 1882. Laws, p. 109. Under, code 1892, (¡174L, and the act of February 27, 1882 (Laws, p. 109), making an accused person a competent witness in his own behalf, he maybe cross-examined touching his voluntary statements previously made in his own behalf, under oath, before the coroner or the committing magistrate. Jackson v. State, 56 Miss., 312, distinguished; Farkas v. State, 60 lb., 847, noted; Sillv. State, 64 lb., 431, cited and approved. Qucere; Is a voluntary confession, made under oath before a magistrate, admissible against the accused, in view of $ 1463, code 1892, providing that the officer “ shall take in writing any voluntary confession that may be made by the accused, not under oath? ” 4. Same. Act of magistrate. Legality presumed. In the absence from the record of anything to the contrary, the appellate court will presume that the testimony of an accused person before a magistrate was given voluntarily, since it would have been illegal to compel him to testify.

From the circuit court of Itawamba county. Hon. E. O. Sykes, Judge. The appellants were convicted of manslaughter, on an indictment for murder, and sentenced to the penitentiary for five years, from which they appealed. The opinion states the case. We insist that our statute, code 1892, §2386, which provides for a special venire in capital cases, is mandatory in the requirement that the jury shall be impaneled “from those summoned and in attendance.” That until the persons summoned on the special venire and in attendance have been exhausted, it is a violation of positive law for the judge to fill up the panel from either the regular juries or bystanders. And because it is a material right secured to the defendant by positive law, it is not within the discretion of the court to disregard the requirement, but such refusal by the court is subject to review by this court. Thompson & Merriam on Juries, sec. 258; Head v. State, 44 Miss., 731-750. The English practice did not allow the king any peremptory challenges or the crown to put aside any member of the special venire without being required to assign a reason. But when the call was finished withqut completing the panel, such members of the venire as had been put aside temporarily had to be called again, and the crown was then required to challenge for cause. This rule has been generally adopted in the United States wherever there is a statute which gives to the state the right of peremptory challenge. Thompson & Merriam on Juries, 158, 259; United States v. Merchant, 12 Wheaton, 480; United States v. Shackelford, 18 Howard, 588. In Boles v. State, 24 Miss., 445-453, on a statute which re-, quired the jury to be impaneled, etc., from those summoned, the court intimates that the defendant would be entitled to compulsory process to secure the attendance of the absent venireman. But- in this case the j ury was secured out of the special venire, and the court held it Was not error to refuse the compulsory process. This court, commenting on the Boles case in Hale v. State, 72 Miss., 140, differentiates that statute from our present one, which has been re-enacted in four different codes, but announces that the present law requires the jury to be made up from the special veniremen ‘ ‘ summoned and in attendance, ’ ’ which, we earnestly insist, determines the action of this court in refusing to have venireman Wygle called, immediately after the special venire and jurors for the week had been exhausted, to be error. Wygle did not answer to the call of his name, but was in the courthouse when the call of the special venire was finished, which was made known to the court and the request made that he then be recalled. He was also present in the courthouse when the call of the jurors for the week was completed, and the court again requested' to have him recalled. Both of the requests were refused and the panel was completed from bystanders, which, we say, was in violation of positive law and makes a precedent which would endanger the life and liberty of the citizen if adopted. For if the judge has the right peremptorily to stand aside one venireman, he would have the right to stand aside any number. It will not do to say, either, that the venireman, Wygle, was not ‘Hn attendance” because he did not answer to his name when called. For he was present both when the call for the special venire and the jurors for the week was completed. And we have shown that the rule is and was to go back and call over again any of the special veniremen who were temporarily set aside or passed on the first call. The cross-examination of the appellants, as to what they had sworn before the coroner on the inquest trial, and before the justice on the committing trial, did them an incalculable injury—one which doubtless turned the scale against the appellants, and, together with the erroneous charges, brought about the compromise verdict. The whole case turned on whether the jury would believe the appellants or not. The state claimed the killing was a foul assassination, the defense claimed it was a life' and death struggle in a rencounter brought on by deceased. The appellants had testified before the coroner, as witnesses, in the inquest trial, when they were virtually charged with the crime themselves. The court, in ruling on the objection that the appellants could not be cross-examined on their testimony given in the inquest trial, sustained the objection, unless the state would show that the paper purporting to be the testimony taken down by the coroner was an authenticated copy. Afterwards counsel for appellants, on cross-examination, admitted that he had read over the evidence of two or three of the witnesses, and he thought it was a copy of the testimony taken down by the coroner. Now, whether the court considered that this statement of counsel made the paper competent evidence, under his ruling, or not, the fact remains that he did permit the counsel for the state to use the paper in cross-examining appellants. This was in flagrant violation of the principle “that no statement made upon oath in a judicial investigation of a crime can ever be used against the party making it, in a prosecution of him for the same crime.” Here it was used in the most damaging manner possible. Jaehson v. State, 56 Miss., 311; FarJcas v. State, 60 Miss., 847; Powell v. State, 23 So. Rep., 266. The error was repeated when counsel for the state was permitted to cross-examine appellants as to what they had sworn before the justice of the peace in the committing court. There was no pretense here that there was any confession, and hence the case of Wright v. State, 50 Miss., 332, has no application. The wrong was further persisted in when the court charged the jury, “They had a right to take into consideration the fact, if such be true, that any witness is contradicted as to a material matter, as shown by the testimony.” The action of the court in refusing to receive Wygle as a juror was clearly wrong. We refer the court to Coleman v. State, 59 Miss., 484, and Boles v. State, 13 Smed. & M., 398. In Coleman v. State, when the name of Davis was reached on the regular call the judge stated that he had excused him on account of sickness in his family, but an exception was reserved to the action in this respect, and then the court, of its own motion, set aside the panel and sent for Davis, and proceeded anew to impanel a jury. Defendant objected to this. When Davis’ name was reached he was accepted by the state and tendered to the accused, who challenged him peremptorily. The case at bar is very different from Ooleman v. State. In this case the juror was present before the jury was completed and before the regular jurors for the week were called; and, in fact, from the conclusion of the call of the special venire, all during the time the regular jurors were being called, and after they were exhausted, and while bystanders were being called to complete the jury. It seems to us that it was the clear right of the defendants to have Wygle called. It has been held by this court that disbanding and reorganizing the jury was fatal. See Bolls v. State, 52 Miss., 391; Thompson v. State, 58 Miss., 62. The district attorney ought not to have been permitted, over the objection of defendant’s attorney, to cross-examine the defendants as to their testimony in the committing court. Under the statute it was the duty of the committing court to take down any confession the defendants desired to make freely and voluntarily, and it seems to us they could not have been cross-examined about anything that occurred in that court, except such a confession so taken down. Our jury law is directory merely; but appellants are in error as to the facts connected with the refusal of the lower court to accept Wygle as a juror. The record itself does not disclose facts sufficient to sustain the assignment of error touching that matter. There is nothing in-the record to show as a fact that Wygle was ever in court. I submit, therefore, that the question argued so earnestly in the brief of counsel is not properly raised by the record, and that the same will not be considered by the court. Under the evidence of appellants themselves, by their own testimony and admissions, the jury could not escape a conviction, at least of manslaughter.