House v. State , 133 Miss. 675 ( 1923 )

Sykes,, P. J.,

delivered the opinion of the court.

The appellant was indicted, tried, and convicted of the crime of assaiilt and battery with intent to kill and murder, and sentenced to serve a term of years in the state penitentiary, from which judgment this appeal is prosecuted.

The court denied the application of appellant for a change of venue and this denial is assigned as error. From the testimony upon this motion we are satisfied that the court was correct in denying same. It is unnecessary to set forth in detail the testimony thereof.

The appellant through his attorney filed in this cause a written motion for permission for himself or attorney to directly interrogate the jury. A similar motion was also made by the same attorney in the case of J. M. Jones v. State, 98 So. 150, this day decided by us, and in which opinion this motion is set out in full.

This motion is based upon chapter 294 of the Laws of 1922, which reads as follows:

“Section 1. Be it enacted by the legislature of the state of' Mississippi, that the parties or their attorneys in all jury trials shall have the right to question jurors who are being impaneled with reference to challenges for cause, and for peremptory challenges, and it shall not be necessary to propound the questions through the presiding judge, but they may be asked by the attorneys or by litigants not represented by attorneys.

“Sec. 2. That all laws and parts of laws and all rules of court in conflict herewith be and the same are hereby repealed.

“Sec. 3. That this act take effect and be in force from and after its passage.

“Approved February 3, 1922.”

The learned circuit judge overruled this motion and held this, statute unconstitutional because “it seeks to take the inherent powers away from the court.”

The legislature has a. right to enact laws regulating the procedure of trials in the courts of the state. Many in» stances of these regulations are referred to in the opinion of Judge Ethridge in the Jones case, supra.

Section 26 of the Constitution guarantees to one in-dieted a trial by an impartial jury. The Constitution does not provide the mode of procedure in trials in the circuit court. In the chapter on circuit courts in the Code we have elaborate provisions regulating the pleadings to he filed by all parties to a suit. Section 577, Hemingway’s Code, section 793, Code of 1906, provides that the instructions must be written and prohibits the circuit judge from commenting on the testimony or charging the jury as to the weight of evidence. Under this statute it has been held that the circuit judge has not the power of originating independent instructions. Watkins v. State, 60 Miss. 323. He cannot of his own motion give any instruction whatever. Bangs v. State, 61 Miss. 363. This statute does not interfere or take away from a circuit judge his power of instructing the jury, but merely regulates the manner of procedure.

The number of peremptory challenges in civil and criminal cases is likewise regulated by statute.

These statutes relating to the pleadings, instructions, and number of peremptory challenges are statutes of procedure.

The statute in question is of a similar nature. It gives the defendant the right to directly interrogate the jurors tendered him. It in no wise interferes with the power of the court or the circuit judge to pass upon the competency or relevancy of the question or of the answer thereto. He must permit a reasonable examination of the prospective juror either by the defendant or his attorney. He, however, regulates this examination just as he regulates the examination of the witnesses in the cause. It is merely a statute of procedure and in no wise interferes with or takes away any power of the court or judge. It was error to deny this motion of the defendant.

The denial of the motion was in effect a millifying of tjje statute. The defendant is entitled to this statutory right. The legislature evidently thought it a very material right when it passed this statute. The statute would serve no purpose if this court did not hold that it was reversible error to deny a defendant the right given him by this statute.

Reversed and remanded.;