Opinion
No. 29415 1/2.
March 30, 1931.
1. CRIMINAL LAW. Error, if any, in not keeping jury box locked and sealed and prematurely preparing jury list was cured where jury was impaneled and sworn to try case in view of curative statute ( Code 1930, sections 2033, 2040-2042, 2064).
Defendant moved to quash venire from which jury that tried him was drawn because jury box had not been locked and kept closed and sealed, as required by Code 1930, section 2033, and because jury list was prepared by sheriff and clerks of the circuit and chancery courts twenty-one days before the beginning of the term of court when it should have been prepared, under sections 2040-2042, within fifteen days thereof.
2. CRIMINAL LAW.
Defendant's requested instructions, manifestly argumentative and on weight of evidence, were properly refused.
APPEAL from circuit court of Sharkey county; HON.E.L. BRIEN, Judge.
John S. Joor, Jr., of Rolling Fork, for appellant.
Appellant submits that on the testimony of the clerk of the circuit court showing that the slips containing the names of the jurors were placed in the jury box which was left open and from which box the jury was drawn more than fifteen days before the term of court and certified to the sheriff, was contrary to law (Sec. 2341, Code of 1927, Sec. 2041, Code 1930) and the jury should have been quashed on the motion of the defendant. W.A. Shipman, Assistant Attorney-General, for the state.
In order to warrant the court in quashing a jury box it is not enough to show that it would be possible for names to be substituted for the list prepared by the board of supervisors; but the testimony must in fact show that a fraud has been committed, or show such flagrant violation of the jury laws as that the acts proven would constitute fraud in law.
Cook v. State, 91 Miss. 137; Lewis v. State, 91 Miss. 505; McVey v. State, 117 Miss. 243; Quick v. State, 132 Miss. 794; Atkinson v. State, 137 Miss. 42; Rhodman v. State, 153 Miss. 15; Harris v. State, 155 Miss. 794.
This is an appeal from a conviction of manslaughter. The appellant moved the court to quash the venire from which the jury that tried him was drawn for two reasons: (1) That the jury box had not been "locked and kept closed and sealed," as required by Section 2033, Code 1930; 2d that the jury list was prepared by the sheriff and clerks of the circuit and chancery courts twenty-one days before the beginning of the term of court, when it should have been prepared, under sections 2040 and 2042, Code 1930, within fifteen days thereof. The clerk of the court testified that the jury box was not locked, but was kept by him in his office vault where his records were. This motion was overruled; no error was thereby committed, for the reason that these irregularities are within the curative provisions of section 2064, Code 1930.
Two instructions were refused the appellant. Both of them are manifestly argumentative and on the weight of the evidence, and therefore were properly refused.
Affirmed.