Hill v. State , 112 Miss. 375 ( 1916 )

SteveNS, J.,

delivered the opinion of the court.

Appellant was indicted for the murder of one Davis Lyons, convicted of manslaughter, and sentenced to the penitentiary for a term of three years. There are only two points raised by the assignment of errors that merit discussion. The first point is the contention that the state failed to prove the venue; and the second point is the complaint that the petit jury was not specially sworn in accordance with the provisions of section 1483, Code of 1906.

The witnesses for the state, in detailing the facts, nowhere mention Wilkinson county. There is abundant evidence, however, that the crime was committed in Cen-terville, Miss. The undisputed evidence also shows that the scene of this tragedy was on the track of the Yazoo & Mississippi Valley Railroad Company, “at the north end of the depot, going up the track. ’ ’ Witness Murry Feltus, who was with appellant at the time she cut or stabbed the deceased, says that Davis Lyons, the deceased, overtook them “when we got up to the other end of the depot, going up the track.” We quote further from his testimony the following:

“Q. Where did this take place? A. At the north end of the depot, going up the track. Q. How far from Mr. Ford’s store? A. It was west of the store. Q. About how far is it from the corner of Ford’s store to the depot? A. I guess about thirty or forty yards. Q. From the front of the store to where she was? A. Yes, sir. Q. You state you and Hattie were north of the depot in Centerville? A. Yes, sir; going up the track.”

The defendant was introduced as a witness in her own behalf, and stated, among other things, that she, in company with Murry Feltus, came across by Hughes’ store, up the railroad track, going home, and that when she first heard from the deceased she was about a block and a half up- the track. Then follows the following question and answer:

“Q. What happened then? A. I was at the upper end of the depot, when he called me, and I answered him, but did not hesitate in my walking. He. caught up with me, and said, ‘Hattie.’ I said, ‘What?’

And on cross-examination she states that the altercation took place by the side of the railroad track, when deceased overtook them; that it was on the- same side of the track next to the depot; and that deceased, at the time, was between her and the depot. The evidence, then, in our judgment, clearly shows that the fatal stab was given the deceased in a fight occurring on the railroad right of way in the town of Centerville, and within sight of the depot and some of the stores of that municipality; that the deceased, after receiving the mortal wound, betook himself to one of the drug stores for examination and treatment, and was attended by a physician who lived in Centerville. The evidence quoted, in connection with the other evidence in the case, fixed, beyond doubt, the scene of the tragedy. Courts not only take judicial cognizance of municipalities, hut of the existence and general course of important railroads like the one here running through the municipality of Centerville. But even if the evidence left the venue in doubt, we would he precluded from reversing this case on that ground by section 1401, Code of 1906.

A special venire was not asked for or used in the trial of this case. The jury was accepted from the regular panel. It was contended, on the motion for a new trial, that the jury was not specially sworn, as required by section 1483 of the present Code. Conceding that the proof shows the irregularity complained of, this error, under the provisions of sections 1413 and 4936 of the Code, cannot now be availed of by the defendant. It is a “defect or omission” in reference to the petit jury “which might have been taken advantage of before ver-diet” and which, was not taken advantage of. Looking to section 4936, we are convinced that this error or omission was not jurisdictional in its character, and was not made the ground of special exception at the proper time. The defendant permitted the jury tendered her to be accepted, and a trial on the facts had without calling the court’s attention to the apparent oversight in not having the jury specially sworn. Not until after the verdict is returned and there is a motion for a new trial is any complaint made of this omission. We are constrained to hold that special exception in the instant case should have been reserved or made at a time when the lower court could have corrected the error. This holding finds support in Alexander v. State, 22 So. 871, Hays v. State, 96 Miss. 153, 50 So. 557, and Boroun v. State, as reported on suggestion of error, 105 Miss. 887, 63 So. 297, 457.

There is no material error in the instructions,' or any other ruling of the court complained of. There is evidence sufficient to warrant the conviction for manslaughter.

Affirmed.