Burrage v. State , 101 Miss. 598 ( 1912 )

Smith, J.,

delivered the opinion of the court.

Appellant, having been in the court below convicted of murder and sentenced to imprisonment for life in the state penitentiary, appeals to this court. When the case came on for trial, he filed a motion for a continuance on the ground of the absence of witnesses, who would testify to matters material to his defense.

In order to ascertain the truth of the matters set up in this application, the district attorney, over the objection of appellant, cross-examined him with reference thereto, but asked him no questions with reference to his guilt or innocence of the crime for which he was on trial. The action of the court in permitting appellant to be thus examined is assigned for error, but we cannot consider the same for the reason that the point was not reserved in the motion for a new trial, and was therefore waived.

It appears from the special bill of exceptions that during the progress of the trial in the above cause,, which had proceeded to the point of impaneling the jury to try the cause, the state had accepted a full panel of twelve competent, qualified jurors to try the cause, and had tendered and presented said full panel of twelve •jurors, among whom was a juror by the name of T. J. Pitchford, to the defendant, and, after the defendant had accepted the said juror T. J. Pitchford, the state, •over the objection of the defendant then and there made, was,, by the court on the application of the state, and over the objection of the defendant, allowed to peremptorily challenge and take off of the jury to try this cause the said juror T. J. Pitchford, who had been accepted by the state, and tendered and presented by the state to the defendant, and accepted by the defendant, to try the ■case.”

It appears from the evidence that Pitchford, after he had been accepted by the state, and while being examined by the defendant, indicated that he would not convict any man on trial for murder upon negro testimony; thereupon, the court permitted the district attorney to further examine him, and, in answer to specific questions, he stated that he would not accept, or convict upon, negro testimony. The witnesses by whom the state expected to, and did, prove the guilt of appellant, were negroes. Pitchford was therefore an incompetent juror, and it became the duty of the court to set him aside, even though he had been accepted by both the state and the defendant.

That he was challenged peremptorily by the state, instead of being set aside for cause, is wholly immaterial, for the reason that we must presume that the court, without this challenge, would have discharged this duty of setting the juror aside. The rule announced in Stewart v. State, 50 Miss. 587, is therefore not here involved.

During the progress of the trial, it became necessary for the judge presiding to leave the court and absent himself therefrom for several days, and the governor, in accordance with the statute governing such eases, appointed Judge Robert Powell as special judge to preside over the court in the absence of the regular judge. By agreement between counsel for the state and appellant Judge Powell proceeded with the trial of appellant. In the motion for new trial one of the reasons assigned for the setting aside of the verdict is the fact that this special judge concluded the trial, it being alleged that the defendant was thereby prejudiced for the reason that he, the special judge, had not heard the testimony in the case. Counsel in their brief say that they made their agreement for the special judge to proceed with the case in good faith, intending to abide thereby, hut that the regular circuit judge had released them from this agreement, and indicated' that he would like to see the point presented to and decided by this court. The appointment of the special judge was regular and in accordance with the statute, and consequently he was empowered to try all issues which might be presented to~ him during the absence of the regular judge. It may be that on objection by appellant he ought not to have proceeded with his trial, but should have begun anew, as to which we express no opinion, for the reason that appellant having' consented thereto cannot now assign it as error, and it is immaterial that the regular judge has consentéd that this assignment of error he made.

The jury retired to consider their verdict on Saturday night, and at 12:06 a. m. Sunday morning reported that they were ready with their verdict, which the circuit judge' thereupon received in open court. This action of the court is assigned for error on the ground that, Sunday being in law dies non, a verdict rendered on that day is a nullity. It is true that we have no statute providing that verdicts- may he received on Sunday, and it may be that a judgment rendered on Sunday is void, hut “in regard to the delivery and reception of verdicts a different rule applies, as the rendering of a verdict is a mere ministerial act, and it is an act of necessity and charity to receive it, and not keep the jurors confined until Monday.” 37 Cyc. 589, and authorities there cited. The court therefore committed no error in receiving this verdict.

After making a careful investigation of all of the other matters complained of, we find no reversible error therein. Affirmed.