Opinion
No. 39110.
April 5, 1954.
1. Jury — motion to quash panel — sustained.
In prosecution for unlawful possession of intoxicating liquor wherein it appeared there were only four jurors on jury panel when case was called for trial, and presumably twelve jurors were at the time deliberating on another case, and only sixteen petit jurors had been empaneled at beginning of week, and trial judge directed sheriff to summon from body of county twelve men to serve as jurors, and sheriff called additional jurors from bystanders in courtroom, and jury so empaneled was tendered for the trial, defendant's motion to quash the panel should have been sustained, and under applicable statute enough jurors to complete jury panels should have been drawn from jury box and summoned. Secs. 1792, 1794, Code 1942.
Headnote as revised by Hall, J.
APPEAL from the circuit court of Covington County; HOMER CURRIE, Judge.
W.W. Dent, Collins, for appellant.
I. The Court erred in overruling appellant's motion to quash the jury panel, and the case should be reversed and remanded for a new trial because thereof. J.W. Sanders Cotton Mills, Inc. v. Moody, 191 Miss. 604, 2 So.2d 815; Rhodman v. State, 153 Miss. 15, 120 So. 201; Sec. 1794, Code 1942; Chap. 304, Laws 1938.
II. The affidavit for the search warrant and the search warrant itself are not in compliance with either Section 2614, 2616 or 2617, of the Mississippi Code of 1942. Adams v. State, 202 Miss. 68, 30 So.2d 593; Mason v. State (Miss.), 32 So.2d 140; Serio v. City of Brookhaven, 208 Miss. 620, 45 So.2d 257; State v. Watson, 133 Miss. 796, 98 So. 241; Traxler v. State (Miss.), 67 So.2d 292; Turner v. State, 133 Miss. 738, 98 So. 240; West v. State (Miss.), 42 So.2d 751; Sec. 23, Constitution 1890; 79 C.J.S., Searches and Seizures, Sec. 79 p. 882.
III. The record reflects that the search was merely a routine search exploratory in its nature, and such searches are condemned, 79 C.J.S., Searches and Seizures, Sec. 63(b) p. 826.
IV. The verdict of the jury is against the weight of the evidence. Baylis v. State, 209 Miss. 339, 46 So.2d 796; Sellers v. City of Picayune, 202 Miss. 741, 32 So.2d 450.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
I. The Court committed no error in overruling the motion to quash and set aside the jury panel. Wilkerson v. State, 207 Miss. 556, 42 So.2d 745; Sec. 1794, Code 1942.
II. The affidavit for the search warrant and the search warrant itself complied with the law authorizing the issuance of same, and there was no fatal variance between the affidavit and the warrant. Mason v. State (Miss.), 32 So.2d 140.
III. The issuance of the search warrant by the justice of peace in the case at bar was an adjudication that there was probable cause therefor. This adjudication was conclusive and could not be collaterally attacked as here upon the issue between the State and the appellant as to the guilt or innocence of accused. Goss v. State, 187 Miss. 72, 192 So. 447.
IV. The proof herein fully supports the verdict of the jury.
This appeal is from a conviction for the unlawful possession of intoxicating liquor. When the case was called for trial there were only four jurors on the jury panel. While the record is not perfectly clear on this point, presumably twelve jurors were at the time deliberating on another case. At any rate, the trial judge entered an order adjudicating the fact to be that there were an insufficient number of jurors on the petit jury panels for the week from which to obtain a jury to try the case and the sheriff was directed to summon from the body of the county twelve men to serve as jurors in this case. The sheriff called the additional jurors from the bystanders in the courtroom and the jury so empaneled was tendered for the trial. Appellant filed a written motion and affidavit to quash the panel, which motion was overruled, and appellant was put to trial before the jury so selected.
Section 1794, Code of 1942, provides that when jurors are drawn and summoned for a term of circuit court and there are not a sufficient number to make up a grand jury and three petit juries "the court shall immediately cause the proper number of jurors to be drawn from the box and summoned." In the case of J.W. Sanders Cotton Mills, Inc. v. Moody, 191 Miss. 604, 2 So.2d 815, we held that this statute is mandatory and not merely directory, and that when the petit juries have not been filled by men drawn from the jury box, the trial court must draw additional names from the box to fill the panels and cannot direct the sheriff to go out and summon men of his own selection. But under Section 1792, Code of 1942, the judge may direct that only two full juries shall be impaneled. It is only when the full panels have been drawn and made up and are subsequently exhausted that the trial judge may direct the sheriff to select additional men from the body of the county without drawing them from the jury box. Cf. Smith v. State, 196 Miss. 524, 18 So.2d 300, and Wilkerson v. State, 207 Miss. 556, 42 So.2d 745. (Hn 1) In this case the motion to quash should have been sustained and enough jurors to complete the jury panels should have been drawn from the jury box and summoned.
We find no reversible error in the other points raised by appellant, but for the error indicated the cause must be reversed and remanded.
Reversed and remanded.
Roberds, P.J., and Lee, Kyle and Holmes, JJ., concur.