Shepherd v. State , 89 Miss. 147 ( 1906 )

Mayes, J.,

delivered the opinion of the court.

There are many assignments of error in the recbrd, but we only deem it necessary to notice that .assignment of error which brings into review the action of the circuit judge in the selection of the grand jury, as shown by the special bill of exceptions taken at the time and before the grand jury was impaneled and sworn, since by it the legal existence of the grand jury which found the indictment against appellant itself is challenged. The special bill of exceptions shows that the regular August term of the circuit court of Amite county was convened according to law, and that appellant was confined at the time in the jail of Amite county on a charge of murder. When the court convened-on the first day of the term, -and the presiding judge undertook to organize the grand jury for the term, he placed all the names composing the venire facias from each supervisor’s district in the county in separate hats, as the law required; but he arranged the slips in the hats with the face up, so that all the names on the slips could be seen and read by him, and after this was done the judge proceeded to select out of each of said hats five names, aggregating twenty names in all, for the purpose of constituting the grand jury. In selecting the names in the-manner stated above, the judge selected only the names of such persons as he desired to place on the grand jury; the judge knowing the name on each slip before he picked it up, and ignoring the names of persons on the slips whom he did not want on the grand jury. • The appellant, being represented by counsel, objected at the time, in open court, before the grand jury was impaneled and sworn, and tendered a special bill of exceptions to the court embodying the above facts, which was signed by the judge and is a part of the record. The grand jury, so organized, indicted appellant for murder, and he was placed on trial and convicted, and given a life sentence in the penitentiary.

Let it be emphasized that the special bill of exceptions, signed by the judge, shows that he arranged the slips in the hats with the -face up, so' that he could see and read the names before he selected a person to serve as grand juror, and that he ignored the names of such persons in the hats as he did not desire to place on the grand jury, arid that the judge himself, and not some person designated by him, proceeded to draw out the names for the purpose of constituting the grand jury, and that all this was excepted to at the time. Code 1892, § 2371, as amended by sec. 4, ch. 84, p, 95, of the Laws of 1896, is as follows:

“Grand jurorshoiu drawn. — The number of grand jurors shall not be less than fifteen, nor -more than twenty, in the discretion of the court, and they shall be drawn from the list of persons in attendance as jurors in the following manner: The name of each juror shall be written on a slip of paper, and the names from each supervisor’s district shall be placed in a separate box, hat, or compartment in open court, and there shall be drawn out by a person designated by the judge, the number directed by the court; and said names shall be drawn from each box in regular order until the number designated is drawn, and the jurors whose names are so drawn shall constitute the grand jury and bo impaneled and sworn as such.”

When this legislative method, directing how the grand jury shall be drawn, is compared with the acts of the judge, it is plainly to be seen that it has been violated. Some method had to be adopted by the legislature for the drawing and selecting of a grand jury, and the method adopted by them is the only method by which a grand jury may be legally organized. No discretion is vested in the judge as to whether he will follow the law laid down by the legislature for drawing grand jurors, or adopt another plan for the. selection which may be more in accord with his individual ideas. It was manifestly the purpose of the legislature, as indicated by the act referred to above, to have the grand jury selected by chance out of the names of those summoned on the venire facias, and to have them selected by a person other than the judge of the court, because the act provides that they “shall be drawn out by a person designated by the judge.” The legislature must be intended to mean what they have said. The plan adopted by them, as was said by Chief Justice Sharkey in the case of McQuillen v. State, 8 Smed. & M., 597, in speaking of the improper organization of the grand jury: “The restrictions and requisites have been imposed for wise purposes. They are guards thrown around the liberty of the citizens. They constitute an important part of the right of trial by jury.” As was also said in that case, so we say in this, that a grand jury does not, by our law, consist of fifteen or more men, not exceeding twenty, congregated by the selection of the judge of such persons from the venire facias as suit him, but they must be selected, according to the forms of the law, and if the law be not followed, it is an incompetent grand jury, and an indictment returned by them is void. The action of the judge was a manifest violation of the statute in regard to the manner of drawing the grand jury, and, if his action can be justified, a grand jury may be selected in any manner that a judge might choose, and all the law on the subject of juries be swept aside. There is no law authorizing the judge to select the grand jury in the manner that he did, but there is a law directing the selection of the grand jury in a different way. If he can change the method in one way, he can change it for all, and the effect would be to break down all the law on the subject. McQuillen v. State, 8 Smed. & M., 597; Rawls v. State, 8 Smed. & M., 609 ; Stokes, et al., v. State, 24 Miss., 624.

The legislature has very wisely designated the manner of selecting juries and grand juries, and the law on this subject must be followed. As was said in the case of Finley v. State, 61 Ala., 207: “The exercise of such a power by the court would be in violation of the spirit of all our legislation, and would convert the grand jury from a distinct, independent body, drawn and summoned by officers specially charged with that duty, into a mere dependency of the court, chosen by its absolute will. The practical results of such a power are too apparent to require discussion or statement. There is no reason for imputing to the court in this instance more than mere error; but the power exercised, in the hands of a capricious or unscrupulous judge, would destroy the purity and independence of the grand jury, and pervert it from all the purposes of its institution.” We quote the language used in above case with approval in this case. While we know that the learned judge in the court below acted from the highest and best motives, yet Ave are laying down a ride of laAv for the control of the lofty and the low, and, when the plain requirements of a statute have been AÚolated by a judge in tbe organization of his court, we are bound to look to the law, and not to' the motive, in determining the legality of bis acts.

Tbe Posey case in 86 Miss., 141 (38 South. Rep., 324), lias no application to this case. In the Posey case, after impaneling the grand jury, certain members having been excused by the court, the court directed tbat bystanders, designating them, serve as grand jurors; sucli persons not being among those listed by the supervisors for jury service, and their names not being on the venire drawn for service during the term; but no exception was taken at the time, and no direct challenge was made. In the case under discussion tbe defendant did object to the manner in which tbe grand jury was drawn at the time and before impanelment of same. Section 2375 of the annotated code of 1892 provides that “after the grand jury shall have been sworn and impaneled, no objection shall be raised, by plea or otherwise, to the grand jury; but the impaneling of the grand jury shall be conclusive evidence of its competency and qualifications; but any party interested may challenge or except to tbe array for fraud.” The action of tbe circuit judge is not cured by this section of tbe code, for tbe reason tbat objection was made before the impaneling of the jury, even if it be conceded that this section would in any event have made valid the action of the judge in drawing the jury as be did.

Let the cause be reversed, the indictment dismissed, and the prisoner held to await the action of a proper grand jury.