Boroum v. State , 105 Miss. 887 ( 1913 )

Reed, J.,

delivered the opinion of the court.

Stanton Boroum was convicted on a charge of unlawful selling of liquor in August, 1912.. It is alleged in the indictment that the offense is “the second violation of the Laws of 1912, chapter 214.” He was fined $200 and sentenced to sixty days in jail. The evidence in the case is sufficient to support a conviction for unlawful selling.

Upon the trial seven tales jurors were added to the panel. They were sworn on their voir dire, but were not sworn regularly as jurors until the case was closed and the jury had retired for consideration thereof. It appears that just after the jury had retired the clerk stated to the court that the seven jurors had not been sworn to try the case. All of the jurors were then returned to the court room and the seven were duly sworn. It does not seem that they had entered into a conference relative to the case before they were called back. The failure to swear the jurors before the trial began is assigned as error by appellant.

The statute of this state (section 2713, Code of 1906) does not state when the juror shall be sworn in. ¥e do not find that .any prejudice resulted from the failure to swear in the jurors at any particular stage in thé trial. The case against appellant had proceeded in the due and usual way, and the tales jurors were properly sworn before they entered into a conference of the case and had deliberated for the purpose of reaching a verdict. We do not see that the right of appellant to a jury;,' guaranteed to him by law, was in any way denied, im paired, or diminished by the delay in swearing the jurors;

We take the following from 12 Enc. PI. & Prac., 532: “Every reasonable intendment will be made in favor of the legality and regularity of the action of the trial court in forming the jury, and mere inconsequential errors and omissions, from which no prejudice resulted or could have resulted, may be disregarded. Hence, in rei viewing the rulings of the trial court, its action will not be revised unless it appears that the rights of the appellant or complaining party have been prejudiced, or that the law has been violated.”

We conclude that this assignment of error is not sufficient for reversal of the case.

In the indictment it was charged that the sale was the second violation by appellant of the Laws of 1912, ch. 214. The testimony shows that it was about three or four years before the trial in March, 1913, when appellant was convicted of a former unlawful selling of liquor. This was prior to the enactment of chapter 214, Laws of 1912. By that statute a’different punishment is provided for the first and for the second conviction. Upon the first conviction the punishment shall be by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than one week nor more than three months. Upon a second con: viction the punishment shall be a fine of not less than •one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than sixty days nor more than six months. Paragraph B of the act, providing punishment for the second conviction, farther reads: “If the conviction is for an offense under this act, committed after a conviction and punishment for a former offense hereunder.”

Now it will be seen that the first conviction and punishment of appellant for unlawful selling was not a former offense under chapter 214, Laws of 1912; therefore he should not have been punished in the present prosecution as for a second conviction. But the indictment stated sufficiently the charge of unlawful selling, and a conviction thereunder necessarily included a conviction of a first offense committed after the passage of the act. While his conviction was legal, yet it may be that the court, in passing sentence upon him, followed the' provision of punishment for conviction of a second offense. Appellant may be heard to complain, therefore, of his sentence in this case, and we conclude that the case should be remanded to the trial court, in order that a new sentence may be pronounced. -

We do not find any reversible error in any of the other assignments presented by appellant: The' case is' affirmed, and is remanded for the purpose only of resen-tencing, appellant. • '

on SUGGESTION- OE ERROR.'

Reed, J.,

delivering the opinion of the' court.

It Is provided in section 1413 of the Code of 1906 that no verdict or judgment shall “be arrested, reveresed, or annulled after the\ same is rendered, for any defect or omission in any jury, either, grand or petit, or for any other defect of form which might have been taken advantage of before verdict, and which shall not have been so taken advantage of.”

In the case of Hayes v. State, 96 Miss. 153, 50 South. 557, it was decided that an objection to the indictment for the reason that the grand jury returning it had not been sworn' is not well taken, when first raised after conviction on motion in arrest of judgment, and that a defendant is not cut off from raising a jurisdictional question by the statute, hut only limited in the time in which he may raise the same.

In order that all that was done in the trial of this case relative to the swearing of the tales jurors may be fully and exactly known, we set forth the statement of the court, made upon qiotion by appellant for a new trial,, which is as follows: “When this case was called for trial and proceeded with the impaneling of the jury, all the-regular jurors for the week were exhausted by challenge for cause and also by peremptory challenge. The sheriff was directed to summon some good and lawful men to-act in this case as jurors, which was done, and finally,, after challenge for cause and peremptory challenge, counsel for defendant and counsel for the state accepted the-jury. The jury remained in the jury box throughout the-entire trial of' the case, heard the testimony and arguments, received the instructions of the court, and then were retired to the jury room to consider their verdict, under the instructions that they were to remain together and to be in charge of the bailiff. The bailiff, with the-jury, proceeded to the jury room, and they had been in that room for a few minutes- — -perhaps considered some parts of the case — when the .court’s attention was called by the clerk of the court that the seven jurors that had been chosen from the bystanders had not been sworn to try this case. Thereupon the court ordered the bailiff to return the jury into the court room. Without asking-any questions, the court simply stated that he had overlooked swearing those seven jurors to try the case, and that the clerk had also overlooked the matter, all parties concerned had overlooked it, and thereupon swore-those seven jurors as provided by law. Thereupon they retired to their jury room with the instruction to remain together in charge of the bailiff to consider their verdict and deliberate on the verdict at their pleasure, and they returned into court the verdict. ‘We, the jury, find the defendant guilty as charged in the indictment. ’ ’ ’ It does not appear, from this statement by the court of everything which occurred touching the administering of the oath, that the omission complained of was taken advantage of before verdict as required by the statute.

In the suggestion, of error it is claimed that we were incorrect in our statement in the opinion that it did not seem that the jurors had entered into a conference of the case before they were called back.. We note that the court stated that the jury had been in the room for a few minutes and had “perhaps considered some parts of the case” when called back. And this statement is borne out by the testimony of the jurors introduced on motion for a new trial. However, we consider that the extent of the conference by the jurors after they retired, or whether they conferred or deliberated at all, is immaterial in view of our conclusions in this case as now set forth.

The suggestion of error is overruled.