Estes v. State , 127 Miss. 309 ( 1921 )

Cook, J.,

delivered, the opinion of the court.

Appellant was convicted of murder, and sentenced to life imprisonment, and from this conviction and sentence he prosecutes this appeal.

He assigns as error the action of the court in overruling a motion to quash the special venire facias. This motion to quash is based upon.the ground that the original veivire facias shows no return of service upon the jurors as the law requires, and shows no service upon the defendant or his counsel for one entire day as the law directs. The motion to quash further recites that — “The defendant filed a proper motion asking for the service of such venire facias upon defendant or- his counsel for one entire day as the law directs.”

While the motion to quash recites that a proper motion for the service of a copy of the list of jurors summoned ivas filed, the record wholly fails to disclose any order of the court upon this motion, or that it Avas called to the attention of the court at the proper time, or at any time prior to the filing of the motion to quash the venire facias. Unde? section 1481, Code 1906 (section 1239, Hemingway’s Code) :

“Any person indicted for a capital crime shall, if demanded by him, by motion in writing, before the completion of the drawing of the special venire, have a copy of the indictment and a list of the special venire summoned for his trial, delivered to him or his counsel at least one entire day before said trial.”

But this motion must be presented to the court in proper time. In Collier v. State, 106 Miss. 613, 64 So. 373, this court said:

“It was the duty of the counsel for appellants to present his motion to the court for action before the completion of the drawing of the special venire. Under the statute the copy of the indictment and list shall be given the defend-' ant upon his demand. We do not see how a court can act upon a demand, unless it is brought to the court’s attention.”

Tbe motion to quash the venire facias was therefore properly overruled, for the reason that it.does not appear that the motion demanding a copy of the list of jurors summoned was called to the attention of the court at the proper time. There is, however, an additional reason why this motion was properly, overruled. The record affirmatively shows that when the case was called for trial on the return day of the venire facias both the state and the defendant announced ready for trial. Thereupon the impaneling of the jury was proceeded with until twelve jurors had been accepted by the state and tendered to the defendant. Then it ivas that appellant for the first time registered an objection to the venire, and filed his motion to quash the venire facias. This was entirely too late. When he announced ready for trial and permitted the impaneling of the jury to proceed without objection, he waived his right to object to the venire upon the ground that no copy of the list of jurors summoned had been served upon him.

We find no reversible error in any of the other assignments. The testimony amply supports the verdict of the jury, and the judgment of the lower court is therefore affirmed.

Affirmed.