McVey v. State

1. Jury. Special venire. Since under section 2718, Code 1906, so providing, all the provisions of law in relation to impaneling juries, are directory merely where the jury box had five compartments, two of which contained less than ten names each, and a special venire was demanded. In such case it was not error for the court to direct the clerk to issue an open venire facias for fifty jurors as provided for by Code 1906, section 2715, when the jury box is exhausted, although the names in the boxes had not in fact been exhausted. 2. Ceiminal Law. Presence of accused. Where the defendant was present when the method by which the jurors were selected in a special venire was determined which method was thereafter pursued, the requirement that the accused be present was. sufficiently complied with, although in his absence the court ruled upon objections made by his counsel identical with the one made and ruled on in his presence.

Appeal from the circuit court of Hancock county. IIoN. Jas. H. Neville, Judge. Walter McVey was convicted of murder and appeals. The facts are fully stated in the opinion of the court. As to appellant’s contention about the drawing of the special venire, the attorney-general attempts to justify the procedure by section 2718 of the Code of 1906, on the theory that the jury law is directory. This section only applies to irregularities in drawing the jury, and not where the statute is totally disregarded and the plain mandate of the law not observed, as held in the Shepherd case, 89 Miss. 147, and the Cook case, cited in our original brief. The appellant was supposed to be present while these proceedings were had, as it was shown by the minutes he was there when they • started, and as a matter of fact he was there when the order was made; but after the proceeding with which the minutes close, as above quoted, to wit: The order of the-court that said special venire be made returnable at ten o’clock October the 4th, the minutes do not inform the court what became of the prisoner. The attorney-general further says in his brief, at page 6 that it appears that the defendant was present when the motion was made to quash the special venire facias because the motion to quash which appears at page 23, of the record begins: “Now comes the defendant Walter McVay and moves the court' in the above styled cause to quash the special venire facias, etc.,”' and does not state that the motion is made by attorneys. The motion shows on its face, we submit, that it was made by appellant’s attorneys and not by appellant personally; it is signed by his counsel, not by himself. As a matter of fact McVay was not present when the-motion was made and the court cannot infer because the words “by attorneys’’ happened to be omitted from the motion that appellant was present when the motion was made and taken up by the court. The attorney-general says that there was no objection made to appellant’s absence during these proceedings. This is answerable on two grounds: First, under section 26 of the Constitution of Mississippi, appellant had a right to be heard by himself or his counsel or by both; and, having a right to be heard, this necessi-bated Ms presence, and cannot be waived and did not have to be excepted to; and, Further, under the Sherrod case 93 Miss. — , cited in onr original brief, Chief Justice Whitfield put it on the high ground that it was a common-law right so sacred that it could not be waived. When a constitutional right is violated, the courts will not stop to inquire whether or not prejudice resulted. The brief of the attorney-general lays much stress on the fact that we have not shown that appellant was tried by an unfair jury or that he was prejudiced by the actions of the court complained of. We have to say that appellant was, first and foremost, entitled to a fair and impartial trial, and a fair and impartial trial is such a trial as is guaranteed to him by the law of the land, and the law of the land is that he is entitled to a fair and impartial jury and a fair and impartial jury is a jury selected, when otherwise legally qualified, according to the law of the land; and certainly he could not have a fair and impartial jury, selected according to the law of the land, when the plain mandate of the statute constituting the law of the land is deliberately ignored and violated. When a jury from its inception is illegal, then the rule that you must show prejudice does not apply; and we submit that this jury was illegal from its inception. The rule that prejudice must be shown applies when there are mere irregularities in carrying out or enforcing the statute under which the court is- operating, but here the court deliberately ignored the statute and refused to carry out the plain mandate of the statute, and the rule does not apply. The district attorney made a motion for a special venire and the court proceeded to draw the same in accordance with, section 2715 of the Code of 1906, section 2208, of Hemingway’s Code. The jury box was. brought into the court room and the court was advised by the sheriff that one of the compartments in the jury box only contained seven names and another compartment two names. The other compartments contained altogether more than one hundred names. The circuit judge seemed to be of the opinion that such a jury box was in legal effect no box, or the box has been exhausted, ordered a special venire facias to be issued by the clerk directing the sheriff to summon fifty jurors from the body of the county. This method of drawing the special venire was done over the protest of the defendant. In the first place, it is undoubtedly the law in this state that some harmful result must affirmatively be shown to have resulted from an irregular drawing of a special venire.- Head v. State, 44 Miss. 731; Buchanan v. State, 84 Miss. 332; Cook v. State, 90 Miss. 152;-. Shepherd v. State, 89 Miss. 154; Brown v. State, 38 So. 316; Walford v. State, 106 Miss. 19, 63 So. 316; Ferguson v. State, 107 Miss. 459, 65 So. 584. Under 'these authorities, it is a sine qua non that prejudice or harm, or an impartial jury must be affirmatively shown.. Absence from the court room of the defendant not error. ’ Two errors are assigned as to proceedings had in the absence of the appellant. The first is, that the' appellant was not present when counsel moved to have' the jury drawn from the jury box. Counsel for appellant cite the Ebb. Watkins Case, in 110 Miss. 438, and Warfield v. State, 96 Miss. 107, and a great many other cases to the same effect. The precise question presented in these alleged errors as to the absence of the accused was before this court in the case of Coley White v. State, reported in 72 So. 904. This case was affirmed by a divided court sitting in banc and no opinion was written. An examination of the original record and the briefs and the suggestion of error shows that these very cases cited in the case at bar were vigorously argued in the Coley White Case. In that case, the defendant was absent during the argument of the district áttorney. , It is my opinion that the court followed the minority courts in Sherrod v. State, 93 Miss. 774, and that our court made a grievous error in distinguishing between the right of the defendant in capital cases and felonies less than capital. The same point presented in the case at bar is also before this division of the court in the case of George Thomas v. State, from Holmes County. It seems to me that the sensible construction of section 1495 of the Code is that this statute was passed to abrogate the common-law rule requiring the presence of the accused. In view of the fact that the two motions, during the hearing of which the defendant was absent, where made and initiated by counsel for the defendant and that no request was made for his presence, the legal presumption necessarily follows that such presence was waived.