Opinion
No. 35670.
December 11, 1944. Suggestion of Error Overruled December 22, 1944.
1. CRIMINAL LAW.
On motion for new trial on ground of disqualification of trial juror as having been member of indicting grand jury, affidavit and an allegation that defendant and her counsel did not know of situation were necessary properly to raise the point.
2. CRIMINAL LAW.
One convicted of manslaughter was not entitled to a new trial on ground of disqualification of trial juror as having been member of indicting grand jury, where evidence did not establish that defendant and her counsel did not know of such disqualification.
APPEAL from the circuit court of Clarke county, HON. JESSE H. GRAHAM, Judge.
W.F. Latham, of Quitman, for appellant.
A member of the grand jury which found the indictment is incompetent as a petit juror on the trial of the accused.
Beason v. State, 34 Miss. 602; House v. State, 96 Miss. 653, 51 So. 274.
There is no doubt but that this juror, J.B. Roberts, conconcealed the facts which rendered him incompetent from the trial court and if the juror on his voir dire concealed facts which rendered him incompetent and sat upon the jury a verdict of conviction will be set aside and a new trial granted.
Shepprie v. State, 79 Miss. 740, 31 So. 416; Jeffries v. State, 74 Miss. 675, 21 So. 526.
The appellant has the right to a fair and impartial jury to try her case.
Ferriday v. Selser, 4 How. (5 Miss.) 506; Lewis v. State, 9 Smedes M. (17 Miss.) 115; Sam v. State, 13 Smedes M. (21 Miss.) 189; Nelms v. State, 13 Smedes M. (21 Miss.) 500; 53 Am. Dec. 94; McCarty v. State, 26 Miss. 299; Cotton v. State, 31 Miss. 504; Williams v. State, 32 Miss. 389, 66 Am. Dec. 615; Ogle v. State, 33 Miss. 383; Beason v. State, supra; Alfred v. State, 37 Miss. 296; Gilliam v. Brown, 43 Miss. 641; Lee v. State, 45 Miss. 114; Logan v. State, 50 Miss. 269; White v. State, 52 Miss. 216; Russell v. State, 53 Miss. 367; Skinner v. State, 53 Miss. 399; Fortenberry v. State, 55 Miss. 403; Smith v. State, 55 Miss. 410; Parker v. State, 55 Miss. 414; Brown v. State, 57 Miss. 424; Jones v. State, 57 Miss. 684; Spain v. State, 59 Miss. 19; Cooper v. State, 59 Miss. 267; Coleman v. State, 59 Miss. 484; Guice v. State, 60 Miss. 714; Smith v. State, 61 Miss. 754; Penn v. State, 62 Miss. 450; Helm v. State, 67 Miss. 562, 7 So. 487; Stricklin v. State (Miss.), 13 So. 898; Mabry v. State, 71 Miss. 716, 14 So. 267; Hale v. State, 72 Miss. 140, 16 So. 387; Green v. State, 72 Miss. 522, 17 So. 381; Jeffries v. State, 74 Miss. 675, 21 So. 526; McGuire v. State, 76 Miss. 504, 25 So. 495; Klyce v. State, 79 Miss. 652, 31 So. 339; Shepprie v. State, supra; Fugitt v. State, 82 Miss. 189, 33 So. 942, 85 Miss. 86, 37 So. 557; Schrader v. State, 84 Miss. 593, 36 So. 385; Lewis v. State, 85 Miss. 35, 37 So. 497; Gammons v. State, 85 Miss. 103, 37 So. 609; Evans v. State, 87 Miss. 459, 40 So. 8; Cook v. State, 90 Miss. 137, 43 So. 618; Dennis v. State, 91 Miss. 221, 44 So. 825; Murphy v. State, 92 Miss. 203, 45 So. 865; House v. State, supra; Jones v. State, 97 Miss. 269, 52 So. 791; Whitehead v. State, 97 Miss. 537, 52 So. 259; Martin v. State, 98 Miss. 676, 54 So. 148; Collins v. State, 99 Miss. 47, 54 So. 665, Ann. Cas. 1913C, 1256; Burrage v. State, 101 Miss. 598, 58 So. 217; Magness v. State, 103 Miss. 30, 60 So. 8; Howell v. State, 107 Miss. 568, 65 So. 641; Hatten v. Bond, 112 Miss. 590, 73 So. 612; Haley v. State, 123 Miss. 87, 85 So. 129, 10 A.L.R. 462; Ex parte Cashin, 128 Miss. 224, 90 So. 850; Darby v. State, 128 Miss. 438, 91 So. 37; Langston v. State, 129 Miss. 394, 92 So. 554; Haney v. State, 129 Miss. 486, 92 So. 627; Louisville N.R. Co. v. Jones, 134 Miss. 53, 98 So. 230; Hines v. Lockhart (Miss.), 105 So. 449; Archer v. State, 140 Miss. 597, 105 So. 747; Donahue v. State, 142 Miss. 20, 107 So. 15, citing McHenry v. State, 91 Miss. 562, 44 So. 831, 16 L.R.A. (N.S.) 1062; Lewis v. State, 153 Miss. 759, 121 So. 493; Cruthirds v. State, 190 Miss. 892, 2 So.2d 145; Fisher v. State, 145 Miss. 116, 110 So. 361; Constitution of 1890, Sec. 26.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The motion for a new trial on the ground that the juror was not qualified does not comply with the rule of this Court, and, therefore, the court committed no error in overruling the motion. On a motion for a new trial based on facts not known during the trial, both the defendant and his attorneys must make affidavit, or testify under oath, that they were ignorant of such facts during the trial.
Hilbun v. State, 167 Miss. 725, 148 So. 365; Grady v. State, 158 Miss. 134, 130 Co. 117; Salmon v. State, 151 Miss. 539, 118 So. 610; Queen v. State, 152 Miss. 723, 120 So. 838; Lipscomb v. State, 76 Miss. 223, 25 So. 158; Brown v. State, 60 Miss. 447; Harris v. State, 61 Miss. 304; Long v. State, 163 Miss. 535, 141 So. 591; Cooper v. State, 194 Miss. 592, 11 So.2d 207.
Argued orally by W.F. Latham, for appellant, and by R.O. Arrington, for appellee.
Appellant was indicted upon a charge of murder and convicted of manslaughter. The only assignment of error argued is the disqualification of the trial juror Roberts as having been a member of the indicting grand jury.
This disqualification was made the basis of a motion for a new trial, but the motion does not allege that the defendant and her counsel did not know of the situation, and is not supported by affidavit of either. Such affidavit and allegation were necessary properly to raise the point. Cooper v. State, 194 Miss. 592, 11 So.2d 207.
However, the trial judge proceeded to hear testimony on this issue. The defendant did not testify. The circuit clerk testified that the juror Roberts was a member of both the indicting grand jury and the trial jury; that defendant's counsel before the trial of the case requested of him the grand jury records indicating a certain term, the date of which he did not recall. The deputy clerk testified that the attorney on the day of the trial requested and examined the grand jury lists for the term at which appellant was indicted. The attorney himself testified that "it was his recollection" that he made such requests but for another grand jury list; that he had records of all grand jurors for previous years including the one in question, but "had not thought or consulted that record until yesterday morning"; and that he had a wide acquaintance all over the county.
The trial judge was therefore justified in resolving the issue adversely to appellant, especially since the defendant neither testified thereon nor made affidavit. In the solution of the question, it was not necessary for the judge to discredit the testimony of the attorney but was warranted in imputing to him a knowledge both of the propriety of and the available means for investigation. That a special venire had been awarded heightened the responsibility and enlarged the opportunity of counsel to inform himself. That his ignorance of the juror's identity persisted past the voir dire examination and escaped the admitted practice of scanning such jury lists, must have been taken into account by the trial judge in charging him with the responsibility which the deputy clerk directly testified he had assumed.
Affirmed.