Dennis v. State , 96 Miss. 96 ( 1909 )

Whitfield, O. J.,

delivered the opinion of the court.

In the case at bar the trial had proceeded for three days, and the jury had not only been sworn in chief, but numerous witnesses had testified before the jury. In the selection of the jury the defendant had exercised ten of the peremptory challenges allowed him by tire statute. One of the jurors became insane during the progress of the trial. The defendant thereupon moved the court to declare a mistrial, discharge the jury, and give him a trial d& novo, which motion was overruled. The court discharged the insane juror and proceeded to substitute another juror in his place. The remaining eleven jurors were never retendered to the defendant. Thereupon the defendant moved the court to allow him to exercise his right of challenge as to the eleven jurors remaining, which motion the court overruled. Thereupon the defendant moved the court to be allowed his twelve peremptory challenges in the selection of the one juror to be substituted for the insane juror, and this motion was overruled, and the defendant was compelled to proceed in the selection of the substituted juror, and was only permitted to exercise two peremptory challenges, which remained to him from the former trial. All of this was done over the objection of the defendant, not inteiposed in a general way, but specially, and special bills of exception were taken to the action of the court. This was fatal error. See Thomp. & Mer. Juries, 273, and citations; Proffatt, Jur. Trials, p. 487, c. 11; 1 Thompson on Trials, 90, and citations; 1 Bish. New Crim. Law, 1014; Kinloche’s case, Post. Crim. Law, 16; Weddenheimer’s case, Post. Crim. Law, 22; also United States v. Haskell, 4 Wash. C. C. 402, Ped. Cas. No 15,321; State v. Vaughn, 23 Nev. 103, 43 Pac. 193; Garner v. State, 5 Yerg. (Tenn.) 160; State v. Curtis, 5 Humph. (Tenn.), 601; Commonwealth v. Knapp, 10 Pick. (Mass.) 477, 20 Am. Dec. 534; Jackson v. State, 51 Ga. 402; Sterling v. State, 15 Tex. App. 249; State v. Scruggs, 115 N. C. 805, 20 S. E. 720; Commonwealth v. McCormick, 130 Mass. 61, 39 Am. Rep. 423. In the Jefferson case, 52 Miss. 767, this court gave as some of the reasons for refusing to disturb the judgment, that the objections taken were general. In the instant case they were special. The accused did not claim at the time a continuance of the trial. In this case the defendant did make this claim. Jefferson did not claim the privilege of re-challenging the other eleven jurors. In this case the defendant did claim this privilege, and it was denied to him. All of these things which Jefferson did not do, whereby his case was affirmed, the defendant in this case did do.

The lower court further erred in the so-called new trial, which, was claimed to have been given in this: The same witnesses were not introduced, and the record in this case presents the curious anomaly of a conviction where eleven of the jurors lieai’d the testimony of several witnesses, whose testimony was not heard at all by one member of the jury. In this state there is no statute on this subject, and the common law, of course, prevails. Under the common law there is no room for discussion. The court should have begun de novo, and the defendant should have had the whole jury, as reconstituted for the new trial, tendered to him, with the right to exercise all his challenges given him by the law. We approve the statement of the true doctrine on this subject in the opinion of the supreme court of Florida in West v. State, 42 Fla. 244, 28 South. 430, where that learned court say: “The common-law rule is that in a trial for felony, if a juror, the judge, or the prisoner, becomes incapacitated by illness or death, after the jury is impaneled and sworn in chief, the proper course to pursue is to declare a mistrial and begin de novo. In the case of a juror falling ill after being sworn in chief, there is no impropriety in utilizing the remaining eleven on the new trial; but they should be retendered to the prisoner and resworn, and the defendant has a right to his full complement of peremptory challenges, just as though there had been no prior impanelment of a jury in his cause, and he has the right to peremptorily challenge any. of the eleven first chosen upon their retender to him. Some of the American courts hold that in such cases the discharge of one juror after being sworn, but before any evidence is introduced, does not necessitate the discharge of the remaining eleven, nor the beginning of the trial de novo; but such holdings are planted upon special statutory enactments, and have no force as authority here, where there is no such statute and where the common law prevails.”

We pass upon no other point in this case.

Reversed and remanded.