Opinion
No. 42012.
February 5, 1962.
1. Robbery — evidence — identification — conviction sustained as against defense of alibi.
Evidence relating to identification of defendant, corroboration of identification and asserted alibi warranted conviction for armed robbery. Sec. 2367, Code 1942.
2. Criminal law — arrest — evidence as to defendant's arrest proper to show legality of arrest.
3. Juries — special venire — motion to quash — eleven out of forty jurors summoned not available — quashing not required where no prejudice shown.
That only 11 out of 40 jurors summoned were available did not require quashing of special venire, where defendant was not prejudiced, jury was impartial, there was no total departure from statutory procedure and there was no fraud. Sec. 1795, Code 1942.
4. Juries — special venire — motion to quash — quashed only for fraud or total departure from statute.
A special venire will not be quashed except for fraud or total departure from procedure laid down by statute. Sec. 1795, Code 1942.
5. Juries — listing, drawing, summoning, empaneling — law directory.
The provisions of the law in relation to the listing, drawing, summoning and empaneling juries are directory. Secs. 1795, 1796, 1798, Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Harrison County; LESLIE B. GRANT, J.
Thomas D. Berry, Jr., Gulfport, for appellant.
I. Defendant was tried without due process of law and has thereby been deprived of his liberty unconstitutionally. Carter v. State, 198 Miss. 523, 21 So.2d 404; Fisher v. State, 145 Miss. 116, 110 So. 361; Art. 3 Sec. 14, Constitution 1890.
II. In essence appellant was not given a special venire as guaranteed in capital cases. Sec. 1795, Code 1942.
III. The trial court abused its discretion in allowing the State to use virtually unlimited leading questions on direct examination. Green v. State, 163 P.2d 554; Gullatt v. State, 158 P.2d 353; People v. Hamilton, 30 N.Y.S.2d 155.
IV. The trial court erred in its restriction on appellant's cross examination of the State's witnesses. Lindsey v. United States, 133 F.2d 368.
V. The trial court erred in its comments on the testimony and the evidence. Collins v. State, 99 Miss. 47, 54 So. 665; Green v. State, 97 Miss. 834, 53 So. 415; Kellum v. State (Fla.), 104 So.2d 99; Sec. 1530, Code 1942.
VI. The Court erred in refusing to retire the jury as requested by appellant while the State had the Court pass on its voir dire question on matters pertaining to the case.
VII. The trial court erred in allowing the State to bring out prosecuting witness' war record and disability and in making prejudicial statements in regard to it.
VIII. The lower court erred in allowing evidence about the red and white Farney Oldsmobile, and introduction of its title along with the sun glasses found in appellant's possession.
IX. The lower court erred in allowing the State to show the car the appellant had been riding in when apprehended was a stolen vehicle. Brooks v. State, 209 Miss. 150, 46 So.2d 94; Floyd v. State, 166 Miss. 15, 148 So. 226.
X. The lower court erred in allowing argument by the State to be made about prejudicial matters not in evidence.
XI. The lower court erred in allowing the State in its argument to place a tiny mask over appellant's picture.
XII. The lower court erred in allowing the State to make personal and prejudicial remarks about appellant's attorney before the jury and in restricting appellant's argument. Nelms Blum Co. v. Fink, 159 Miss. 372, 131 So. 817.
XIII. The lower court erred in not allowing a new trial on the ground that the verdict was contrary to the overwhelming weight of the evidence.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. Defendant was not denied due process of law.
II. As to the special venire. Walford v. State, 106 Miss. 19, 63 So. 316.
III. The trial court did not abuse its discretion with respect to allowance of leading questions. Somerville v. State, 207 Miss. 54, 41 So.2d 377.
IV. The trial court did not err in its restriction of appellant's cross-examination of state witnesses. Jones v. State, 222 Miss. 387, 76 So.2d 201; Moffett v. State, 223 Miss. 276, 78 So.2d 142.
V. The trial court did not err in allegedly commenting on the evidence. Bumpus v. State, 166 Miss. 276, 144 So. 897; Cobb v. State (Ala.), 125 So.2d 522; Gray v. State, 90 Miss. 235, 43 So. 289; Lofton v. State, 146 Miss. 237, 111 So. 303.
VI. The trial court did not err in refusing to retire the jury during a certain phase of voir dire examination.
VII. The trial court did not err in allowing the State to bring out the prosecuting witness' war record.
VIII. The lower court did not err in allowing evidence about the red and white Oldsmobile and the title registration and sunglasses.
IX. The lower court did not err in allowing the State to show the car appellant had been riding in when apprehended was a stolen vehicle. Bellew v. State, 238 Miss. 734, 106 So.2d 146.
X. The lower court did not err with respect to the argument by the State's attorney. Smith v. State, 187 Miss. 96, 192 So. 436.
XI. The lower court did not err in allowing the State in its argument to place a tiny mask over appellant's picture.
XII. The lower court did not err in allowing the State to make personal remarks about appellant's attorney before the jury and in restricting appellant's argument. McLeod v. State, 130 Miss. 83, 192 So. 828.
XIII. The lower court did not err in denying a new trial on the ground that the verdict was contrary to the overwhelming weight of the evidence. Tillotson v. State (Miss.), 1 So.2d 497.
(Hn 1) Appellant Smith was convicted in the Circuit Court of Harrison County of armed robbery. Miss. Code 1942, Rec., Sec. 2367. The jury found him guilty of holding up the operator of a service station with a gun, and obtaining money thereby. The State's case rested principally upon the testimony of John Lambert, operator of the station, who stated positively that defendant was the man who committed the offense in the early morning of September 30, 1960. The jury was warranted in accepting his testimony, which was consistent and believable.
There was some evidence tending to corroborate Lambert's identification. The robber was wearing a blue jumper, a wide brimmed hat and sun glasses. Shortly before the robbery Lambert saw a two-tone, red and white 1955 Oldsmobile turn the corner behind the station. Later the same morning a car matching that description was found backed into the woods near the Edgewater Gulf Hotel, not far from the residence of hotel employees. Later on October 9 appellant was arrested at night in a parking lot. Officers observed him throwing a pistol into a car on the lot. The pistol was said by Lambert to be similar in discolorations and markings to that which the robber had. When arrested, defendant had a key to that car. In it was found a bag belonging to defendant containing several items, including a flashlight, four pairs of sun glasses (one similar to that worn by the robber), and a Kansas title registration certificate for the 1955 Oldsmobile, registered to another man. The Oldsmobile was similar to the car seen near the filling station before the robbery and found abandoned in the woods near the hotel, where appellant worked.
Defendant did not testify. His defense was based on an asserted alibi, the validity of which was for the jury. Moreover, the alibi's time-sequence would have left appellant ample time to proceed to the service station and commit the offense. In summary, the conviction was not against the great weight of the evidence, but in fact was supported by ample evidence.
(Hn 2) Appellant has assigned a number of asserted errors committed in the trial court. We have carefully examined the record, and find no reversible error in it. The entire trial constituted in substantial part a running battle between the district attorney and defendant's counsel, with the honors about equal between them. Some of the interrogations by both sides were irrelevant, but are not reversible errors on appeal. The evidence as to appellant's arrest on the night of October 9 was proper to show the legality of that arrest.
(Hn 3) Upon defendant's request, the trial court ordered the summoning of a special venire of forty jurors. Code Sec. 1795. Eighteen appeared. The court excused three for cause, and, after challenges by the parties of others, there remained six jurors taken from the special venire. Along with six others from the regular panel, all of whom were accepted, and two alternate jurors, the jury was formed and the case submitted. Defendant moved that the special venire be quashed because only eleven out of the forty called were available. This motion was overruled.
Code Sec. 1795 provides that after the venire is exhausted the trial court shall make up the jury "from the regular panel and tales jurors who may have been summoned for the day." This was what the court did. There is no evidence to show appellant was prejudiced by this procedure, or the jury was not impartial. In Walford v. State, 106 Miss. 19, 63 So. 316 (1913), under somewhat similar facts, it was said: "The sheriff failed to summon forty jurors, and therefore to that extent failed to obey the order of the court; but under section 2718 this provision of the jury law is directory merely. Since there is no hint in the record that an impartial jury was not obtained, appellant suffered no harm by reason of the fact that the sheriff only summoned thirty men, and cannot complain thereof."
(Hn 4) A special venire will not be quashed except for fraud or total departure from the procedure laid down by statute. Here there was no total departure nor any suggestion of fraud. Riley v. State, 208 Miss. 336, 44 So.2d 455 (1950). See also Harrison v. State, 168 Miss. 699, 152 So. 494 (1934); Williams v. State, 26 So.2d 64 (Miss. 1946); Code Sec. 1796. (Hn 5) The provisions of the law in relation to the listing, drawing, summoning and empaneling juries are directory. Code Sec. 1798.
Affirmed.
McGehee, C.J., and Arrington, McElroy and Rodgers, JJ., concur.