Lipscomb v. State , 76 Miss. 223 ( 1898 )

E. H. Thompson, Special J.,

delivered the opinion of the court.

W. H. Lipscomb, a practicing physician, was indicted jointly with one Guy Jack, by the grand jury of Kemper county for the murder by poisoning of Charles T. Stewart, a patient of the accused. A severance was had and appellant was tried at the March term, 1897, of the circuit court of said county, and convicted of the crime. From this conviction he appealed to this court, and, on the nineteenth day of February, 1898, the judgment and sentence of death, passed upon him by the court below, was reversed and vacated and a new trial granted. The case on the former appeal is reported: Lipscomb v. State, 75 Miss., 559. The judgment of this tribunal reversing the first conviction was rendered by a divided court, two members favoring a reversal, not because there was a want of sufficient evidence to support the verdict, but because of errors committed by the circuit court in its action on instructions; the other member of the court favored an affirmance of the judgment then appealed from and of the death sentence, notwithstanding such errors, on the ground that appellant was so manifestly guilty, from the evidence, of having murdered the deceased by the administration of poison as to render the errors nonreversible ones.

On the first appeal the principal question discussed was that of the admissibility of the dying declaration of the deceased, which declaration was in these words: “He [meaning the declarant] said that he had been dead and that he was going to die, and the good Lord had sent him back to tell me [the witness] that Dr. Lipscomb had poisoned him with a capsule he gave him that night, and Guy Jack had his life insured and had hired Dr. Lipscomb to kill him.”

One of the judges who heard the cause was of the opinion that the entire declaration was incompetent; two of them that parts thereof were competent, and since the only objection to its admission in evidence on the trial then under review was a general one, that the trial court did not err in allowing the declaration to be given in evidence to the jury. As the case was to be reversed and a new trial awarded, the two judges who concurred in the opinion that parts of the dying declaration were admissible, thought proper to indicate in their opinions which parts were so admissible over specific objections of the accused, if made, and which parts should be excluded upon like objections.

After the case was remanded it again came on to be heard in the court below, at its March term, 1898. The accused, appellant, made an application—the first one—for a continuance of the case, averring as cause why the same should be granted, that his physical condition was such that he was unable to undergo a trial at the then present term of the court. In support of this application, the accused and his attendant physician were introduced as witnesses before the court, and testified relative to the subject-matter of the application. At the conclusion of this evidence, the court below, not being satisfied upon the question then at issue, caused seven practicing physicians to examine the person of the defendant, and directed them to make, on oath to the court in writing, a report of his physical condition. This was done, five of the seven physicians reporting that the accused was able to stand his trial, and two that, in their judgment, he was unable to do so. The court thereupon overruled the application for a continuance. This was on March 10, 1898, and a special venire was then drawn, and the case was set for trial on the fifteenth of that month.

On the morning of the fifteenth the appellant renewed his application for a continuance, or rather made a second one, supporting the same by his affidavit, in which he averred that because of his physical and mental condition he was unable to endure the ordeal of a trial, or to properly conduct or advise his attorneys concerning, his defense, and that his infirmities had grown materially worse since his first application for a continuance had been denied. The court below was not satisfied upon the matters of fact thus presented, and caused twelve practicing physician to be subpoenaed to appear before the court,, and eleven of them so appeared. The court gave directions to these physicians to examine the accused and report the court in writing:

1. Whether the physical condition of the accused enabled him to endure the strain that would necessarily be upon him during the progress of a trial.

2. Whether the mental condition of the accused enabled him to intelligently note and pay that attention to the development of the testimony that would be needful to the administration of j ustice.

3. Whether the physical and mental condition of the accused enabled him intelligently to testify, if he desired to do so, in his own behalf.

Nine of these physicians, after making the examination of the accused, reported on oath to the court, in writing, to the effect that the defendant was physically able to endure a trial and mentally able to advise his attorneys and conduct his defense, and to testify in his own behalf. Twornf the eleven dissented, and reported that Lipscomb was physically unable to undergo a trial, and mentally unfit to intelligently give his evidence or to protect his interest should a trial then be had. The court, upon receipt of the reports of the physicians, overruled the application—the second one—for a continuance.

The district attorney, in behalf of the state, then moved the court to displace the sheriff of the county, because, as was averred in support of this motion, that officer was interested in the case and an active partisan of the accused, and the motion further asked the court to make an order requiring the coroner of the county to execute, do and perform all of the duties which appertain to the office of sheriff in the particular case being tried. This motion was based upon § 828, code of 1892, which section is in words following: “If, for any cause, there be a vacancy in the office of sheriff, and no deputy to act as authorized by law in case of the death of the sheriff, or the sheriff be a party or interested in any suit, or, for other cause, be incapable or unfit to execute his office in any particular case, the coroner of the county shall, during the vacancy, or in the cases wherein the sheriff is disqualified or unfit to act, execute, do and perform all the duties which appertain to the office of sheriff. And in every case where, by vacancy or exception to the sheriff, any writ shall be delivered to the coroner to execute, he shall do and perform all things by virtue of such writ which ought to be done therewith and thereunder; and, in case of any neglect or breach of his duty, such coroner shall be subject to the same penalties and damages and to the same proceedings as sheriffs are subject to in like cases. But the coroner shall not execute the office of tax collector.”

Evidence was taken upon the matter of fact so presented, at the conclusion of which the court sustained the motion.

The cause then came on to be heard on the motion of defendant to quash the special venire facias. The grounds upon which this motion was based grew out of the following facts: When the special venire was drawn the trial court directed the sheriff to prepare a list of bailiffs or deputies whom he desired to act in serving the venire, and to present the same to the court', so that their names might be submitted to the attorneys for the state and the defense, with the view of enabling the attorneys to make objection to the competency or fitness of the persons named on the list to perform the contemplated service. The sheriff accordingly made out such list and rendered the same to the trial court, and. the court submitted the list to the attorneys for the prosecution and for the defense. The attorneys for the defense refused to receive the list or to make any suggestions concerning the persons whose names appeared thereon; the attorneys representing the state made objection to two of the men named. The sheriff thereupon selected two other persons in place of those to whom objection had been made, and these two persons, together with those on the original list to whom objection had not been made, were by the sheriff appointed to execute the venire, and they did execute it, each going to a different part of the county to summon the jurors. • The court below overruled the motion to quash the venire, and proceeded to impanel a jury for the trial of the accused.

Six jurors had been examined by the court and adjudged prima facie competent, and had taken their seats in the jury box, but none of them had been accepted by the state or presented to or passed upon by the defendant, when the hour of 6:45 o’clock arrived in the afternoon of the last day of the March term, 1898, of the circuit court of the county, as fixed by the general statute providing the times of beginning and the duration of the terms of court in Kemper county. The special venire in the case and the regular jurors for the week had been exhausted, and the court, thereupon, basing its right so to do upon the provisions of § 933, code of 1892, ordered the acting sheriff to summon additional jurors, and directed that such jurors should be present in court on the following Monday, March 21, 1898, to which day an adjournment was ordered.

The code section is in the following words: ‘ ‘ When the trial of any case, civil or criminal, has been commenced and is in progress in any court, and the time for the expiration of the term, as prescribed by law, shall arrive, the court may proceed with such trial or hearing, and bring it to a conclusion in the same manner and with the like effect as if the stated term had not expired. ’ ’

When the court met on Monday, and when it was about to proceed with the examination of jurors, the defendant moved the court to discontinue further proceedings in the cause, contending that the statute above quoted did not authorize further proceedings, and was not applicable to the cause as it then stood. On the hearing of the motion, the minutes of the court’s proceedings on Saturday, March 19, were offered in evidence, from which it appeared that during that day the defendants in ten separate criminal cases, who had been convicted of crime, were brought before the court and duly sentenced; the last entry on the minutes of the court for that day, however, was one in the cause now under consideration, adjudging that the court stand adjourned until the following Monday (quoting from the entry) “to conclude the hearing of this cause commenced .and in progress, notwithstanding the term of the court prescribed by the law had expired.” The motion was overruled.

The examination of jurors was then proceeded with until a full jury was in the box and was presented to the accused. Thereupon the accused presented a special plea, setting up the matter above stated and made the basis of the motion just referred to, and the plea concluded with a prayer that no further cognizance be taken of the cause at that time. The state demurred to the plea and the court below sustained the demurrer.

Thereupon the jury was completed, and the introduction of evidence entered upon. There were several exceptions to the rulings of the court on the admissibility of evidence, including the dying declaration, taken by the appellant. We will take notice of these rulings after disposing of the assignments of error predicated of the other rulings of the court before mentioned, to each of which the appellant duly excepted.

The applications for a continuance.—We find no reversible error in the rulings of the court below denying the applications for a continuance. Of necessity such applications, based upon the physical or mental condition of the party indicted for crime, must, even more largely than ordinary applications for the •postponement of trials, rest in the discretion of the trial judge; he has the person of the accused before him, and the very appearance of the party may be considered by him in reaching a just conclusion. Were this otherwise the guilty would be afforded opportunity to defeat a trial by feigning sickness. Witnesses who are not experts, called to contradict such pretenses, could swear to nothing save their conclusions from such appearances, and the judge can draw conclusions therefrom as well as such witnesses. Nor will it avail anything in the interest of justice to say that because an accused person produces some medical practitioner who will join him in swearing that the indicted party is physically incapable of enduring the ordeal of a trial, or mentally incapacitated to properly conduct, or aid his attorneys in conducting, his defense, that it follows of course a continuance must be granted. The trial judges are presumed to be honest, impartial and capable officials, and they should be permitted to exercise that discretion in such matters with which the law invests them, and a conviction for crime ought not to be reversed for the reason under consideration unless the case be indeed an extreme abuse of discretion; and such abuse must be apparent from the entire record of the conviction looking at the whole trial and its results as a completed one.

While we are not prepared to give judicial sanction to everything that was done by the learned judge of the court below, in order to satisfy his mind of the real truth concerning the appellant’s mental and physical condition before denying the applications for a continuance, yet we do not hesitate to adjudge, looking at this record as a whole, viewing the proceedings in the court below from the standpoint of a concluded trial, that sound judicial discretion is not shown to have been abused, and that it is manifest that the judge below honestly and impartially endeavored to adjudge in accordance with the very truth.

We do not think the fact that the judge received the sworn report of the physicians appointed to examine appellant constitutes reversible error; it would be perhaps better practice in such cases as this for the representative of the state, if he suspect the accused of feigned illness or temporary mental weakness for the purpose of securing a continuance, to obtain the attendance of impartial physicians as expert witnesses and demand of the accused that he submit to an examination of his person in the presence of the court, and allow such witnesses to be subjected to a cross-examination by the accused and his counsel. If such demand should be refused and the accused object to such procedure, the refusal itself would be evidence tending to discredit the facts upon which the application for a continuance was based, and, where the court was in doubt, would, we think, ordinarily, justify a direction that the trial proceed. However this may be, we are of opinion that continuances of criminal causes based on the matters of fact averred in this case as grounds for allowance, are not to be placed solely in the power of defendants and their friends, even though those friends be physicians, with nothing to prevent the exercise of such power save the restraining influence of having to make oath to the matters of fact claimed by them. Nor do we think that the reception by the court below of the report of the physicians violated the constitutional right of. the accused to be confronted by the witnesses against him. Such right, guaranteed by section 26 of our present state constitution, primarily relates to the trial of the guilt or innocence of the accused. But even if we concede that the court, because of the right embodied in and guaranteed by the constitution, ■erred in receiving the reports in this case, such error is not sufficient cause for reversing the conviction since, as we have already said, we are satisfied, from the record before us, excluding the reports of the physicians, that appellant’s mental and physical condition were such as to deprive him of any right to a continuance because thereof. This is manifest from the skillful manner in which his defense was conducted and the clearness, perspicuity and mental acuteness which characterize his own evidence delivered in his defense.

■Displacing the sheriff.—The next question for consideration is the action of the court below in displacing the sheriff, and directing that the coroner of the county, in all matters pertaining to this case, should perform the duties prescribed by law to be executed by the sheriff. We have already quoted in this opinion, in connection with the statement of facts of the case, the section of the code (§ 828) under which the court below acted. It was shown to the satisfaction of the trial j udge, and the court below so adjudged, that the sheriff was interested in the result of this cause, and it cannot be seriously claimed here that the evidence was insufficient to justify the adjudication. We are of the opinion that the evidence did justify the court below in concluding that the ends of justice would most likely be promoted by having some other person than the sheriff to act in his official capacity in this case. We think the provisions of § 828 of the code are wise, and that the circuit judges ■of the state should be allowed to exercise a liberal discretion in their enforcement. The main purpose of all proceedings in the selection of j uries, the care and control of them during the trial ■of a cause, and the prevention of improper influences being brought to bear upon them after they are impaneled, is to insure fair and impartial trials of causes, and honest verdicts, based upon the real belief of the jurors as produced by the evidence legitimately and properly presented under the direction and control of the court. This main purpose of all trials cannot more efficiently be promoted than by the court seeing to it that the duties of the sheriff are not left to be performed by an interested, person or one for other cause incapable or unfit to execute such duties in the particular case being tried. Of course the power conferred by the statute is a delicate one, and should not be exercised capriciously or without due consideration of the facts in the particular case, and the rights of the officer should not be needlessly violated.

But the principal complaint is predicated of the fact, not that the sheriff was displaced, but that the court below directed the coroner to act, and did not order a deputy sheriff, against whom no personal disqualification was averred or shown, to perform the duties of sheriff during the trial. This contention, in our judgment, is based upon a misconclusion from the statute. The words found in the section, 828, code of 1892, “and no deputy to act as authorized by law in case of the death of the sheriff, ’ ’ have no other effect than to make the balance of the section applicable to the state of case provided for by another section of the code, § 3079. This last section is in the following words: “If any state or county officer shall die, having a deputy, the deputy may continue to discharge the duties of the office in the name of the deceased officer as if he had not died, until the vacancy in the office shall be filled according to law, and the official bond of the deceased officer and his estate shall be a security for the faithful performance of the duties of the office by the deputy, who shall be subject to all the provisions of law applicable to his principal in his lifetime; and the personal representative of the deceased shall have like remedy against the deputy as the decedent would have if living.” The two sections must be construed together, and, so construing them, § 828 cannot be held to require the performance of official duties by a deputy sheriff whose principal is living and ■disqualified.

But, again, if the ■ appellant had a fair and impartial trial, what right has he to complain that the duties of a ministerial office pertaining thereto were performed by one person rather than another, if it appear, as it does in this case, that nothing prejudicial to him or his rights was done by the person who did in fact exercise the functions of the office? We think he has none, and we cannot find warrant, in any view of the case, for reversing the conviction appealed from because the court required the coroner, against whom no objection was averred, to act as sheriff during the trial.

Motion to quash the special venire.—We do not find anything of which appellant can rightfully complain in the facts upon which his motion to quash the special venire was based. It will be noted that the special venire was drawn and process issued for the jurors before the displacement of the sheriff. This process, therefore, was placed for execution in the hands of an officer who was shortly thereafter, upon an investigation of the truth of the matter, adjudged to be interested in the result of this case. It does not appear how the judge of the trial court, before the investigation just mentioned, became advised of the necessity or propriety of making special effort to prevent improper influences being brought to bear on those who had been drawn on the venire, but it must be remembered that the case had been tried once before. The judges of our circuit courts are men of intelligence and presumably have at least ordinary perceptive faculties, and necessarily, in the course of a trial, many things in the conduct of an officer of the court fall under the observation of the presiding judge from which he may naturally and properly draw conclusions in regard to the-bias of an officer of the court or his unfitness to act in the particular case.

While we think wisdom requires judges to be circumspect in regard to the sources of information from which they draw conelusions, yet the law surely does not require that a j udge, who is thoroughly convinced that the fountain of justice is being, or is likely to be, corrupted, shall quietly permit the same to be done, even if his convictions arise alone from personal observation of an officer’s conduct. No state of affairs more harmful to a proper administration of the law can be conceived than that in which a presiding judge is deprived of a power so essential to the impartiality of judicial proceedings, as the supervision and control of the ministerial officers of his court. Certainly he would present a most pitiable and undignified figure if compelled to remain inactive while witnessing the efforts of partisan officials to defeat or impede the progress of justice. To quietly submit to such malversation would be an abdication of one of the highest and most important of judicial functions, and bring into contempt an office, the honor and prestige of which is one of the splendid heritages of the Anglo-Saxon race.

While we do not mean to impute to the sheriff of Kemper county anything not entirely worthy of his official position, yet we must, in this case, presume that in ordering the sheriff to submit to the court the names of his deputies, by whom the jurors were to be summoned, the judge did not act without reason. Whether his action was predicated of observation of the sheriff’s conduct in the cause or sprang from an apprehension that partisan deputies might be selected because of the great interest manifested by the public, in either case we see nothing that was done by the learned judge who presided in the court below, which could wrong the appellant. W hat was done, however, demonstrates to our mind that the presiding judge was conscientiously endeavoring to secure a fair and impartial administration of justice.

The record does not raise the remotest suspicion that the submission to the court of the'names of persons whom the sheriff had selected for appointment as deputies to summon the jurors, or the submission of them by the court to counsel, in the slightest degree prejudiced the accused; so doing was not calculated to prejudice his rights, and the same can be said of the substitution by the sheriff of two unobjectionable persons in lieu of the two at first proposed, and to whom the attorneys for the state.made objection. A speculation based upon the idea that the manner in which the sheriff appointed his deputies, who did execute the writ, might in some way have prejudicially affected the rights of the accused is too theoretical and attenuated to be made the basis for the conduct of the practical affairs of life, and such theories, if indulged, would be calculated to defeat the administration of the criminal law. Besides, the very terms of our statute—■§ 2389, code of 1892—forbid that the judgment appealed from should be reversed because of the matter under consideration. It provides that £ ‘ the provisions of law in rélation to the . . . summoning ... of juries are directory merely, and a jury . . . summoned though in an informal or irregular manner, shall be deemed a legal jury after it shall have .been impaneled and sworn.”

Prolongation of the term of the court.—The court below, late in the afternoon of Saturday, the last day of the regular term of the circuit court of the county, as fixed by the general statute, acting under the provisions of § 933 code of 1892, already quoted, adjudged that the hearing of the cause had been commenced and could not be completed before the end of that day, and adjourned until the following Monday for the purpose of then completing the trial. It will be remembered that six jurors had been declared competent by the court and had taken their places in the jury box, although none of them had been accepted by the state, and of course they had not been presented to or accepted by the accused.

When the court met on Monday the accused, appellant, by a motion to discontinue proceedings, and afterwards by a special plea, raised the question whether the trial or hearing of the cause had been commenced and was in progress, within the meaning of § 933, code of 1892, at the stage of proceedings reached when the court adjourned on Saturday. The court below decided adversely to appellant, and the question thus raised is now to be considered by us, and of course the consideration involves the construction of the statute. The states of Indiana and North Carolina have statutes substantially like our own now under consideration, but we have found no aid from the judicial decisions of those states construing their statutes more helpful in the solution of the question before us than our own decisions hereinafter cited.

At a very early day in the history of the English law it was resolved by the barons of the exchequer that, for the sure and true interpretation of statutes, four things are to be considered, and the learned of all succeeding ages have approved the wisdom of the resolution. These four things are (1) the old law, (2) the mischief, (3) the remedy, (4) the reason of the remedy.

It is sufficient to say of the old law that, before the adoption of the statute under consideration, the expiration of the term as fixed by the general statute, no matter what stage of proceedings had been reached in any cause, absolutely and of legal necessity, terminated the power of the court to proceed. The mischief sought to be remedied by the statute, the true interpretation of which we now seek, we think, was this: the old law left it within the power of a litigant who feared adverse judgment, by dilatory proceedings after a trial had been begun, to escape the consequences of such judgment being then rendered, and that too after the public had incurred, in many instances, practically all the expense that a completed trial would have imposed. The mischief sought to be remedied was not, as argued before us, that persons indicted for crime, and whose trials had been begun, so that jeopardy had attached, could escape all danger of ever being convicted by delaying the trial until the end of the court, because it was, under the old law, adjudged that the expiration of the term necessitated a discharge of the jury, and, under such a state of facts, an accused could not claim protection from another trial under the constitutional provision that no person’s life or liberty should be twice placed in jeopardy for the same offense. State v. Moor, Walker (Miss.), 134; Price v. State, 36 Miss., 531; Josephine v. State, 39 Miss., 613.

It was also urged in the arguments in behalf of appellant that the hearing or trial of a cause, within the meaning of the statute, could never be considered as having been commenced in a criminal cause until the accused was placed in jeopardy, under the authorities construing the constitutional provision as it existed in this state at the first adoption of the statute in 1880; in fact, it was argued that the beginning of a trial and the attaching of jeopardy were coincident; and it was, further, contended that the impaneling of a jury was a proceeding the object of which was to select the triers of the accused, and that a hearing or trial of a cause could not, in the nature of things, be begun until the triers had been selected and something thereafter done, some step taken, before suck triers, in the nature of a direct investigation of the issue presented by the pleadings. These arguments are not without force, and we have given them due and careful consideration. We find, under the better authorities, that the point of time at which jeopardy was determined to have attached was when a jury had been impaneled and sworn to try the accused upon the criminal charge. Jeopardy, therefore, attached before, but ordinarily immediately preceding, the taking of any step in the nature of a direct investigation into the truth of the charge. If, therefore, we accept the instant of time at which jeopardy attached as being the point in procedure when the hearing or trial is to be regarded as begun, we fix a time before, though ordinarily immediately before, any step is taken in the nature of a direct investigation of the truth of the charge, and such a conclusion is confronted with the apparently logical objection that, at such point in the proceedings, nothing had been done except to get ready to enter upon the hearing or trial. And yet, under the logic of previous adjudications of this court, if not the decisions themselves, construing the statute, the correctness of which we do not doubt, we are bound to hold that a hearing or trial of a criminal cause is begun at some point not later in the procedure than that at which jeopardy is held to attach; and we must hold, therefore, that the hearing or trial commences before any ■step is taken in a direct inquiry into the truth of the charge. We ilo not doubt but that, under the decisions of this court above referred to, were our constitutional provision on the ■subject of jeopardy the same as in 1880, when the statute was first adopted, the discharge of a jury impaneled and sworn to try an accused upon a criminal charge, at or immediately preceding midnight of the last day of the term of the court, as fixed by the general statute, instantly upon swearing the jury and before any other step whatever was taken, would just as ■effectually entitle the accused to a discharge as the defendants were entitled to be discharged in the cases of Whitten v. State, 61 Miss., 717, and (if his plea were true) Helm v. State, 66 Miss., 537.

The question then presents itself, if we are to fix upon a time in procedure anterior to any step in the direct investigation of the question of fact presented by the pleadings, does the language of the statute £ £ when the trial or hearing of any cause, civil or criminal, has been commenced, and is in progress,” require us or justify us in fixing upon the point in procedure immediately preceding such a direct investigation ? Did the legislature so intend ? It must be presumed, unless the terms of the statute forbid, that the legislative remedy for the mischief was intended to be efficient. Unless the very words of the statute require it, we would not be j ustified in concluding that the legislature intended to relieve the public treasuries from the unnecessary burdens imposed by abortive trials, when the failure to complete them was caused by the expiration of the term of the court under the general statute, and yet so confine and narrow the relief as to leave a large proportion of such burdens still to be borne by the taxpayers. No reason can be given why the statute ought not to be broad enough to authorize the continuance of a hearing or trial, where, as in this case, a large number of jurors have been summoned, and much time has been spent in an effort to impanel a jury, as well as one in which a jury has been impaneled and sworn. Extreme cases not only test principles but their consideration is sometimes useful to guide the mind in reaching correct conclusions concerning statutes. Suppose that appellant’s crime were so heinous as to have attracted the attention of the entire people of the county, and let us suppose that on the first day of the term of the court at which his case was called for trial the impaneling of a jury was entered upon, and that, after continuous efforts to get a jury, only eleven jurors had been accepted when midnight of the last day of the term, as provided by the general statute, arrived, would not the case be within the mischief sought to be remedied by the section of the code under consideration, and should the enormity of the crime be permitted to aid the criminal’s efforts to escape punishment by rendering it impracticable to impanel a jury within the time prescribed for the duration of the term of court by the general statute ? We cannot think that the legislature, while endeavoring to remedy the evils arising from abortive trials, intended that such a case as we have supposed should, by reason of its enormity, be without the scope of the remedial statute. If such a case be within the statute, then the case actually before us is not without the purpose and intent of its provisions. Do the terms of the statute exclude the case supposed, or the actual case before us, from its operation % It cannot be denied, without doing violence to the plain language of the statute, that the words ‘£ trial ’ ’ and £ £ hearing, ’ ’ as used in the section, relate alike to civil cases and to criminal cases. We think the statute was enacted by the legislature without reference to the technical beginnings of trials as affected by the question of jeopardy. The use of the terms ££ trial or hearing ” proves that something more than—something in addition to—technical beginnings of trials, as construed by the courts in dealing with the constitutional provision on the subject of jeopardy, was in the legislative mind, otherwise the words ‘ ‘ or hearing ’ ’ can be given no force or meaning whatever. There is no just or proper analogy or connection between the statute and the subject of jeopardy.

The code itself furnishes a statutory rule for construing its provisions, which must not be overlooked, and it is in these words: “All words and phrases contained in the statutes are used according to their ordinary and common acceptation and meaning, but technical words and phrases according to their technical meaning.” Code of 18.92, § 1522.

The words “ hearing” and ‘‘trial ” in the statute under consideration are not technical, we think, as there used; we must therefore construe them according to their ordinary and common acceptation and meaning. The best thought that we are enabled to give to the question has led us to conclude that a trial is commenced, within the meaning of the statute, construing its terms according to the ordinary and common acceptation and meaning, when all dilatory proceedings have been disposed of, and when all ordinary efforts, the -object of which is to prevent a trial, have been ineffectually exhausted, and the cause is called for trial, and nothing remains to be done except to proceed therein. We conclude, therefore, that the court below did not err in overruling the motion of appellant, made on Monday morning, to discontinue proceedings, nor did it err in sustaining the demurrer of the state to appellant’s special plea.

The case of State v. Pancoast, 5 N. Dak., 514, s.c. 35 L. R. A., 518, cited by counsel, in so far as concerns any question properly before that court, is not in conflict with our conclusion, although some expressions of the North Dakota court are seemingly adverse to our judgment; but even these expressions are tentative and are limited to the meaning of the words, ‘ ‘ at any time before the trial is begun, ’ ’ as used in a statute •of that state on the subject of a change of venue. Like ourselves, the court was endeavoring to ascertain the meaning of words, not generally, but as used in a 'particular statute.

That we may not be misunderstood, we add that, in our* opinion, the mere' summoning of a special venire, even after the overruling of an application for a continuance in a criminal case, would not be the commencement of a hearing or trial of a cause within the meaning of the law, because such a case’ would not be within the ordinary acceptation and meaning of the terms used in the statute; but the hearing or trial of a. cause is commenced, within the meaning of the statute, just as soon as, but not before, the court enters upon the impaneling of a jury for the trial of the matters of fact presented by the. pleadings. This construction, we think, is the true interpretation of the statute. It neither enlarges its scope beyond legislative intent nor unduly narrows the meaning of its terms.

Rulings on evidence.—We have carefully considered each of the assignments of error 'bringing in review the several rulings of the court in the admission or rejection of evidence-during the trial to which the appellant objected and excepted, and do not find reversible error in any of them. We deem it-necessary to mention only a part of these rulings, the objections to those not adverted to being, in our opinion, wholly without merit.

After the first trial of the accused, and before the one now-under review, a material state’s witness died. Upon the last, trial the state was permitted to prove what the deceased witness had testified on the former trial, after ample preliminary proof of his death, identity, etc. This was not error. While the-exact question here presented was not then before the court, the correct rule on the subject was announced in Owens v. State, 63 Miss., 450.

Two of us think the court below did not err in its rulings on. the dying declaration. We all concur that it did not commit, reversible error, because the appellant himself introduced the entire declaration. The circuit court conformed exactly to the-views of a majority of the members of this court, as announced in their opinions delivered on the former appeal in this cause. The members of the court remain of the same opinion, touching the dying declaration, as held by them when the case was first before us. In the last trial specific objection was made to each part of the declaration, and, as we have jnst said, the court below ruled on such objections in conformity to the views of a-majority of the members of this court.

After such rulings, most likely upon the idea that the excluded parts of the declaration characterized and mollified the effect of .the parts which were held to be admissible, the appeL lant himself offered in evidence, and was permitted to prove, the entire dying declaration. This court did not decide, when the case was first before us, that this was improper;' in fact, a majority held that, under a general objection by appellant, the court did not err in admitting the entire declaration.

Shortly after the death of Stewart, a witness, Dr. Mohler,. informed appellant of the death, and of the fact that the wife of the deceased had accused appellant of murdering her husband. Upon the trial, this witness was asked by the attorney for the state: £< What was the accusation made by Mrs. Stewart as to who killed her husband, w’hich you afterwards imparted to Dr. Lipscomb? What was the accusation?” To this appellant objected, and the court overruled his objection, and the question was answered by the witness. We, however, find ourselves relieved from the necessity of deciding the question thus presented, because the record discloses that the appellant himself afterwards testified to the very matters of fact to which Mohler was permitted to testify.

Instructions.—-The court below did not err in granting the instructions given for the state, or in refusing those asked by the defense, to which our attention is called by the assignments of error.

The juror, Davis.—The only remaining question for our consideration ari.ses from the evidence offered on the motion for a new trial touching the qualifications of the j uror, Davis. The juror was unquestionably competent, according to the facts developed by his voir dire examination, and .he was accepted by the parties. After the verdict, the accused made affidavit that he had been informed, since the rendition of the verdict, of certain facts which rendered the juror not only incompetent, but actually hostile to the appellant when he entered the j ury box. It is to be noticed that while the appellant’s affidavit avers that the matters of fact were unknown to his counsel, yet one of the counsel made an affidavit to maintain a different ground of the motion for a new trial, and did not make oath that he was personally unaware of the facts averred by his client concerning the juror at the time he was accepted as such. This circumstance is not without weight in a case like this, where, after verdict, the integrity and competency of a juror is in issue, and the evidence on such issue is conflicting. The testimony of one man that another is without knowledge of a fact concerning a third, if not in its nature hearsay, is at least akin to it, and is weak and inconclusive evidence.

The authorities require that the accused and his counsel shall both have been ignorant, at the time of his acceptance, of the facts which render a juror incompetent, in order that the verdict be vacated because thereof, and it has been decided by this court that the affidavit of both defendant and the counsel to such want of knowledge is necessary. Brown v. State, 60 Miss., 447. But, aside from this, the great weight, if not the entire current, of authority is to the effect that the finding of the court of original jurisdiction on the question we are now considering, denying a new trial, will not be disturbed where the evidence touching the competency and integrity of a juror is conflicting. We think that the weight of the evidence in this case established the integrity and competency of Davis, and that the court below properly and correctly denied the motion for a new trial.

Judgment affirmed.