Taylor v. State , 148 Miss. 621 ( 1927 )

^* Corpus Juris-Cyc. References: Criminal Law, 17CJ, p. 50, n. 48; p. 56, n. 16; p. 237, n. 20; p. 238, n. 21; p. 289, n. 13; p. 290, n. 21; Juries, 35CJ, p. 284, n. 72; p. 285, n. 86; p. 286, n. 97; p. 289, n. 64, 65. Upon an indictment for murder in the First district of Chickasaw county, Lawrence Taylor was convicted of manslaughter and sentenced by the court to serve a term of fifteen years in the state penitentiary, from which he prosecutes this appeal.

Appellant urges no error on the facts of the case; therefore they will not be detailed.

The appellant assigns as error, first, the refusal of the trial court to order a special venire from the two judicial districts, the court having granted his request for a special venire, but limiting the same to the First district, the one in which the crime was alleged to have been committed. The court ordered a special venire of forty men to be summoned from the First judicial district, but refused the request of the appellant to order one from the Second judicial district of said county.

And, second, that the court erred in admitting the testimony of H.B. Abernathy, county attorney, but as to this second assignment of error, we shall only say that the record discloses only one objection to this testimony or any part of it, and that was sustained by the court, the balance of it going in without objection; and error may not be predicated upon this assignment, because it was not called to the attention of the lower court, and in the light of the trial it is unimportant.

On the first assignment of error, we think the court properly refused to grant a special venire, except as to the First judicial district. Two sections of the Code are involved here, but it is only necessary to quote the sections, as they are in themselves decisive of the question, there being no contention in this record that the jury was in any manner unfair, biased, or partial, and the record shows that the defendant was tried by a fair and impartial jury. Section 2338, Hemingway's Code 1927 (section 2692, Code of 1906), is as follows:

"In counties where there are two circuit court districts the board of supervisors shall make a list of jurors for each district in the manner directed for a county, and the same shall be treated in all respects as for an entire county. In such counties a juror shall not be required to serve out of his district, except the court in its discretion should otherwise direct, and except when drawn on a special venire; and in either of such excepted cases the jury shall be drawn from the two jury boxes, if the court so direct, one name from each alternately."

It is manifest that this section simply permits the circuit court, in its discretion, to summon a special venire from the body of the county, and there is nothing in the language to indicate that it is mandatory that the special venire be drawn from the entire county, but the language "if the court so direct" lodges the discretion entirely within the province of the trial court, and a juror is not required to serve out of his district unless the circuit court in its discretion should otherwise order.

The other section bearing on this question is section 2362, Hemingway's Code 1927 (section 2715, Code of 1906), the applicable part of which being as follows:

"When any person charged with a capital crime, or with the crime of manslaughter, shall have been arraigned and the plea of not guilty entered, it shall be the duty of the court, upon the demand of the accused or the district attorney, to cause to be drawn, in open court, from the jury box, as many names as the judge in his discretion may direct, not to be less than forty."

This section vests discretion in the trial court, and not in the defendant, as to the jury box from which the special venire is to be drawn and the number to be drawn. Section 2365, Hemingway's Code 1927 (section 2718, Code of 1906), provides that "all the provisions of law in relation to the listing, drawing, summoning and impaneling juries are directory merely;" and this court has specifically held that section 2362, Hemingway's Code 1927 (section 2715, Code of 1906), is directory, and not mandatory. And, where there is no evidence to show that the defendant was not tried by a fair and impartial jury, error may not be predicated for an irregularity in drawing or impaneling the jury. Ferguson v. State, 107 Miss. 559, 65 So. 584;Haney v. State, 129 Miss. 486, 92 So. 627; Walford v. State, 106 Miss. 19, 63 So. 316; McVey v. State, 117 Miss. 243, 78 So. 150. The sections, supra, as applicable to the drawing of a special venire are directory, and not mandatory.

Affirmed.