Opinion
No. 37341.
November 14, 1949.
1. Juries — talesmen.
When at the latter part of the week the regular jury panel unexpectedly became exhausted in the effort to empanel a jury for a case then about to be tried and the court directed the sheriff to summon six qualified persons, no directions being given the sheriff as to the manner and method of summoning them, the fact that the jurors were selected from qualified persons in the courtroom did not constitute reversible error.
2. Criminal law — burglary — participation.
In order that an accused may be guilty of burglary it is not required that he shall have engaged in the actual breaking and entry, — it is enough that he helped to plan the crime, watched and stood on guard while the other parties did the actual breaking and entry.
3. Criminal procedure — burglary — identity of the stolen property.
If in a burglary prosecution it is essential that the state identify the stolen property as laid in the indictment, it is enough that some of the items are definitely and properly identified.
Headnotes as revised by Roberds, J.
APPEAL from the circuit court of Newton County; PERCY M. LEE, Judge.
W.T. Weir, for appellant.
It is apparent that the sheriff was ordered ore tenus to summon sufficient men to complete the jury. He called from the audience three from District No. 1; one from District No. 2 and one from District No. 3.
We cite Section 1766 Code 1942 and Section 1792 and submit that this method was a radical departure from the proceedings outlined by the statutes in question and Section 1798 of the said Code, and in this case we submit that the defendant was denied a substantial right when the jury box was available and he had the right to have a jury to be selected from the body of the county. See the case of Lee v. State, 138 Miss. 474, 103 So. 233; and J.W. Sanders Cotton Mills Co. v. Moody, 191 Miss. 604, 2 So.2d 815.
It might be argued that under the case of Smith v. State, 196 Miss. 524, 18 So.2d 300 this action by the court was justified, but we submit that in that case the sheriff was called upon by the court "to go into the body of the county and bring thirteen (13) jurors" which the sheriff did, summoning no jurors who were then in the courtroom.
In the instant case the sheriff was called upon to "summon six more men as jurors" and a motion by the defendant to draw and summon them according to the statute was overruled by the court. And the court did not require the sheriff to go over the county or to summon them from the body of the county, but "directed the sheriff to summon six qualified persons of good intelligence, sound judgment and fair character to make up this jury".
This does not fall under the Smith case, supra, for in that case the sheriff went into the body of the county and in this case the sheriff only called the men from the audience and two of the Districts of the County were not represented.
Now we respectfully submit that this case is one wherein the defendant did not have a jury as contemplated and provided by law and that his constitutional rights were invaded in this respect and he was to be tried by an impartial jury obtained by lawful proceedings.
We submit that the property alleged to have been stolen was not sufficiently identified with the appellant, that is, it was not shown to have been handled by him as required by law.
We further submit that the instruction given for the State was erroneous in that it required the jury to believe that the defendant was aiding, abetting, etc. while the co-defendant Marcus Payne was breaking, etc., into the place and all the testimony for the State, if true, was to the effect that he only was with the boys after the alleged breaking, etc. This would have made him, if true, an accessory after the fact. See Section 1996 Code 1942.
George H. Ethridge, Assistant Attorney General, for appellee.
The court made the following statement: "When this court was organized on Monday of this week, out of the sixty-two names drawn for jury service a Grand Jury of eighteen men was empaneled and two full Petit Juries, one and two. There was no excess or none left over from the sixty-two men to empanel on the third jury. The Court has been trying cases through the week with these two petit juries. In the trial of this case today, in the afternoon, as we have undertaken to get a jury in the case, several jurors have been disqualified on account of relationship to one of the persons named in the indictment, and the panels have been exhausted without the Court being able to procure a jury. The Court has directed the Sheriff to summon six qualified persons of good intelligence, sound judgment and fair character from which to make up this jury. It is not contemplated that after two juries have been regularly empaneled and a situation arises that the panels are exhausted, that the Court shall sit idly by until other names are drawn out of the jury boxes and the Sheriff and his deputies to go over the County to procure them.
"The Supreme Court has held that there is an obligation on the trial court to procure at least twenty four qualified jurors to be empaneled. After that requisite has been met, if it is necessary to get other jurors in order to proceed with a trial the Court has the statutory and inherent power to proceed with the selection of a jury.
"Therefore, the motion is overruled."
This statement by the trial court brings the case at bar squarely under the principles announced in Smith v. State, 196 Miss. 524, 8 So.2d 300, and McCarey v. State, 187 Miss. 78, 192 So. 442. The jurors who were summoned to fill out the full jury for the trial were examined on voir dire. This examination shows that the six so summoned were duly qualified to serve as jurors and were fair and impartial.
The case of Smith v. State, supra, expressly decided that the mandatory act referred to in the Sanders v. Moody case did not apply to filling a jury where the regular juries had been selected and empaneled but for reasons in a particular case where there is not enough in the regular panel qualified to try the case and that the court could direct the summoning of jurors without drawing them from the box. Section 1792, Code 1942 applies to the drawing of jurors for the regular panels, but does not apply to jurors summoned to complete a panel for the trial of a particular case made necessary by the exhaustion of the regular panels for the week. McCarey v. State, 187 Miss. 78, 192 So. 442.
Appellant further contends that the property alleged to have been stolen was not sufficiently identified with the appellant, and that it was not shown to have been handled by him. I do not know of any law which requires property to be handled by one of the defendants jointly indicted and jointly engaged in the perpetration of the crime. The proof clearly shows that the parties were associated together. That Payne entered the premises burgarized and that appellant was out watching and that they had previously agreed upon burglarizing these premises. That the appellant was aiding and assisting and had previously agreed to the proposition. Under Section 1995, Code 1942, every person who shall be an accessory of any felony before the fact will be deemed and considered a principal and shall be indicted and punished as such and this whether the principal has been previously convicted or not. Proof that the appellant was a participant and an accessory before the fact is clear and convincing and it was only denied by appellant whose testimony, if believed, might make him an accessory after the fact, but it was the province of the jury to consider and weigh the evidence and find the facts and their verdict will be upheld where it is supported by proof. The jury alone was the judge of the weight and value of the evidence and the credibility of the witnesses.
Appellant was convicted of burglary. He urges us to reverse and remand the case because (1) error was made by the trial court in the method of selecting and empaneling the jury which convicted him, (2) the verdict of guilty is against the great weight of the evidence, and (3) the property taken during the course of the burglary was not identified.
(Hn 1) On the first question, court started on Monday morning, March 21, 1949. Sixty-two persons, whose names had been duly drawn from the jury box, reported for jury duty. That number had been exhausted in empaneling the grand and two petit juries. The court had been trying cases with the two petit juries. Apparently this case was tried on Friday of the first week. Appellant was indicted with two other persons. Severance was granted but the relation of the jurors to the other two accused parties was necessarily pertinent to their qualifications to try this defendant. The trial judge explained the situation in this statement: "In the trial of this case today, in the afternoon, as we have undertaken to get a jury in the case, several jurors have been disqualified on account of relationship to one of the persons named in the indictment, and the panels have been exhausted without the court being able to procure a jury". He then directed the sheriff to summon six "qualified persons of good intelligence, sound and fair character from which to make up this jury". It is noted the sheriff was not directed as to the manner or method of summoning the six qualified persons. He did, as a matter of fact, select them from the courtroom. However, the record discloses that they were resident citizens of three of the supervisors' districts of the county. All possessed the qualifications of jurors. Defendant moved the court to draw the names from the jury box and require the sheriff to go out into the county and summon those so drawn. The refusal of the trial judge to do that and the method adopted here in drawing the six jurors constitute reversible error, according to the contention of appellant. The adopted method was justified by the cases of McCary v. State, 187 Miss. 78, 192 So. 442; Smith v. State, 196 Miss. 524, 18 So.2d 300. Under such circumstances the court is not required to cease functioning and wait until the sheriff can go about over the entire county and summon jurors. For this to be done and the jurors have time to get to court might take some two or three days, during which the business of the court would be at a standstill and the cost to the public and the litigants would be mounting.
As to the second question, the sufficiency of the evidence to sustain the conviction, Marcus Payne, jointly indicted with appellant, testified that on the occasion in question he, appellant and Martis Fulton, around ten or eleven o'clock on the night of the crime, planned the burglary of a gas and automobile service station owned by Cecil and Burlan Taylor, known as the Woco Pep Service Station, in the Town of Union; that about an hour thereafter they went to the station; that the witness broke through a window into the rest room and thence through a door to the sales room, and took therefrom the property hereinafter mentioned; that during this time appellant was watching, ready to give the alarm on the approach of any one; that witness carried the property a short distance and hid it; that he then went to the automobile, parked not far away, into which appellant had gotten, and they drove to and picked up the property; that they drove from the town and hid the property at different places along the way, some being hidden in the yard at the home of Fulton, appellant participating in these activities. Payne said defendant got part of the money
Viverett, night watchman of Union, testified he saw the three accused persons driving about the town in an automobile the night of the crime ". . . some twelve or fourteen times". He also gave this account of an interview with appellant: "When we went down to the place, I said `Wilkerson, you been hard to catch, but we got you this time'. He said `What you talking about?' and I said `last night', and he said `The service Station' and owned up to it."
Chesney, deputy sheriff, testified that when appellant was arrested he said "he had been with Fulton and Payne all night the early part of the night. That was Sunday night and he was telling me this on Monday, the 7th, and he said he had been with them all night when Wilkerson and Fulton were parked near the depot. And he said that Payne come around to the car about 2:30 or 3:00 and they went down the alley and behind the bank building and Wilkerson and Payne got out and got some stuff hid behind Hugh Martin's store and they come down the highway and he and Payne put some stuff under the church". Appellant also told him "they put some stuff under a bridge". It might be added here the officers found the property where the three accused said they had hidden it. Other evidence of the State implicated appellant in the crime, but we deem the foregoing sufficient.
Appellant was the only witness in his behalf. He admitted he was with Fulton and Payne on Sunday night and that they carried him home in an automobile; that the car stopped and Payne and Fulton brought to it from a place of hiding the stolen property and as they traveled towards his home these two parties hid the property under the bridge and at the church. In other words, he admits being with the other two but simply denies he received any of the property or had any part in the crime.
It is seen at once the evidence is abundant to justify the verdict of guilty. (Hn 2) Appellant seems to contend that because he did not engage in the actual breaking — that he merely helped to plan the crime, watched and stood on guard while the other parties did the actual breaking and entry — that he cannot be guilty of burglary. That contention, of course, is not well taken.
On the third question, the identity of the stolen property, (Hn 3) conceding, but not deciding, that it was essential for the State to identify it, the indictment described the property as five cartons of cigarettes, one pistol, two electric razors, money, etc., of the total value of $162.00. The pistol, razors, a knife, and some of the money were definitely identified as property stolen from the gas station. Appellant contends that because the cigarettes were of standard brand and there were no marks to distinguish the stolen cigarettes from a similar standard brand, this should require his acquittal. More than one sufficient answer could be made to that, but it is enough to say there was no necessity of identifying the cigarettes. The other property was definitely and properly identified.
We find no error in the trial of this case.
Affirmed.