Opinion
No. 34319.
November 11, 1940. Suggestion of Error Overruled, December 9, 1940.
JURY.
Jury was not improperly impaneled because trial judge required inquiries as to challenges for cause to be directed to 18 men rather than to only 12 (Code 1930, secs. 1277, 2064).
APPEAL from the circuit court of Lowndes county, HON. JOHN C. STENNIS, Judge.
John B. Higgins and L.K. Ramsey, both of Jackson, for appellant.
The lower court was in error in method of impanelment of the trial jury.
Appellant was entitled to an impartial jury.
Sec. 26, Const. of 1890.
After the board of supervisors makes its selection of jurors for the time fixed by statute, from then on out it is a matter of chance, and the defendant is entitled to the breaks the law and chance may give him. This procedure in the Columbus district gives the state two choices to the defendant one in this matter of chance.
Where is the statute authorizing the state to pass upon a jury of eighteen men, and where is the statute authorizing the court to present eighteen men to the state or to the defendant for exercise of challenges? We submit that the defendant cannot be required to exercise any of his challenges, either for cause or peremptory, until the state has presented him a full panel of twelve men.
A defendant is entitled to have presented to him a full panel of jurors, all of whom have been accepted by the state. He may challenge any juror so presented and when the vacancies caused by his challenges are filled and the added jurors accepted by the state, he may challenge the added jurors, but not any of the original panel.
Funderburk v. State, 75 Miss. 20; Gammons v. State, 85 Miss. 103, 37 So. 609; Sec. 1277, Code 1930.
W.D. Conn, Jr., Assistant Attorney-General, for appellee.
The trial court in impaneling the jury required both the state and the defendant to challenge for cause before the state was required to use any of its peremptory challenges. Appellant objected to that procedure and insisted that the state should challenge for cause as well as for peremptory before he should be required to exercise any challenge either for cause or peremptory.
The writer of this brief has run up against the procedure adopted by the court in this case as well as that insisted for by appellant. The practice varies in the several circuit court districts of the state. We think that either rule of procedure is permissible under the statute. Our statute, Section 1277 of the Code of 1930, merely provides that "all peremptory challenges by the state shall be made before the juror is presented to the prisoner; and in all cases the accused shall have presented to him a full panel before being called upon to make peremptory challenges."
We think and so submit that either the procedure adopted by the trial court or that insisted upon by appellant meets the requirement of the statute. In neither case is the appellant required to use any peremptory challenges of jurors until the state has presented him a full panel which is satisfactory to it, both for cause and peremptorily. It occurs to us that this is a procedural matter which can be decided upon by the trial courts.
Argued orally by John B. Higgins, for appellant, and by W.D. Conn, Jr., for the appellee.
We find no reversible error in this record, and consider that the only point which requires discussion is the complaint made by appellant as regards the manner in which the trial jury was impaneled.
It has been difficult to determine from the record the precise manner in which this was done, but the following outline of it will be sufficient. There was a special venire and the trial judge first called the entire venire to the bar and inquired as to the general qualifications of the members. To each of those found to possess the general qualifications required of jurors and who had no valid excuses to offer, there was given a number, and thereupon twelve men were called to the box and six additional were placed in chairs in front of the box, making eighteen in all. The trial judge then proceeded to the proper inquiries upon the question whether any one or more of the eighteen were disqualified to sit in the particular case about to be put on trial, that is to say, whether any or more of the eighteen were subject to challenge for cause. Those found to be disqualified for cause were excused and from the others on the venire a sufficient number was called to restore the entire number to eighteen, and the inquiry was repeated as to them, and so on until the judge had placed before the parties eighteen men who were qualified to try the case, so far as revealed by the inquiries conducted by the trial judge.
This being done, the judge turned over the eighteen, first to the State, and then to the defendant for further inquiry and questioning as regards the issues of challenges for cause; and finally when all inquiries as to cause had been made by both sides and all sustainable challenges for cause had been sustained, twelve men according to their respective numbers were left in or transferred to the jury box, and were then tendered to the State for the exercise of such peremptory challenges as the State desired to make. To supply the places vacated by the State's peremptory challenges, others from among those already found qualified as against challenges for cause were called, and when the State had accepted a full panel of twelve men, this panel was tendered to the defendant for the exercise of his peremptory challenges, and the places of those challenged by the defendant were filled from among those already found to be qualified, and these were then tendered to the State for its further peremptory challenges as to them, and when the panel was again completed with twelve men accepted by the State, the new men were then made subject to peremptory challenge by the defendant; and this process was continued until a full jury of twelve was accepted by both sides.
It will be observed that the inquiries as to challenges for cause were required by the trial judge to be directed to those among eighteen men, whereas, according to appellant's contention, the parties at no time should have been confronted with more than twelve. Inasmuch as the right to challenge for cause is without limit as to number so long as the cause therefor is sufficient, we see no valid objection to the presentation by the court before the parties of eighteen or twenty men, or more, who have been found generally qualified, and who in that presentation are presented for the purpose of inquiry as to their competency or incompetency for cause, provided that when later the parties shall be called on to exercise their peremptory challenges no more than twelve men shall at any one time be then presented. The method or manner followed in the present case did not operate to the disadvantage or embarrassment of the defendant in the exercise of his right of peremptory challenge but rather to his advantage in that he could know in that exercise more certainly who would be called to take the places of those whom he would challenge, namely, that the places would be filled from among those already found to be qualified as to cause, if and so long as there remained enough of those so found to be qualified, after which new men would have to be called, and this latter would be true had the whole procedure been confined throughout to a presentation of twelve men at a time and no more.
Affirmed.
SEPARATE OPINION.
The requirement of Section 1277, Code 1930, that "all peremptory challenges by the state shall be made before the juror is presented to the prisoner" was here violated. This provision of the statute, however, is not mandatory under Section 2064, Code 1930, but "directory merely." While I think it would be better for trial courts to follow the statutory directions for empannelling juries, nevertheless only a party who is prejudiced by not so doing can complain thereat; and this record does not disclose that the appellant's right to a fair and impartial jury was in any way impaired by the procedure followed in the court below.