Porter v. State

This is an appeal on a judgment inflicting a death penalty.

No error appears in any of the rulings of the court below complained of by the appellant, only two of which will be specifically noticed. 1. The appellant was unable to employ counsel, and he was arraigned and plead guilty before counsel was appointed for him. 2. He requested, and was denied, a special venire. On Thursday, October 9, 1941, the appellant was arraigned and plead not guilty. He was not then represented by counsel, being unable to employ such. On the next day, Friday, October 10, 1941, the appellant again appeared in court, and James A. Wiltshire, a lawyer of twenty-five years' experience was appointed to defend him, who immediately entered upon his duties relating thereto. He made no request then or thereafter for the setting aside of the arraignment of the appellant. The witnesses for both the state and the defendant were then called, and both Wiltshire and the district attorney announced ready for trial, whereupon the case was set for trial for Wednesday, October 15, 1941. When the case was called on Wednesday, the appellant's counsel, for the first time, verbally requested a special venire for the trial of the case; and on his attention being called to the fact that the statute required the request to be in writing, a written request therefor was made.

The court below erred in arraigning the appellant before appointing counsel for him. Chap. 303, Laws 1934. But error in a judgment does not require its reversal unless the party complaining was prejudiced thereby. This rule applies here. Robinson v. State, 178 Miss. 568, 173 So. 451. After Wiltshire's appointment to defend the appellant, had he or his client desired, the court, on request so to do, could and should have set the arraignment aside. Unless the appellant, or his counsel, desired to change this plea of not guilty or assert some right preliminary thereto, it would have been a vain and useless thing to set it aside so that the appellant might again enter it. The record does not indicate, and counsel for the appellant does not claim, that the setting aside of this plea would have resulted in anything except its immediate re-entry.

The only provision of Section 2061, Code 1930, as to when a special venire in a capital case must be requested, is when the person charged with the "crime . . . shall have been arraigned and the plea of not guilty entered." This cannot mean, and in practice has been interpreted not to mean, that a special venire, if desired, must be requested immediately upon the entering of a plea of not guilty. To summon such a venire when it does not appear that the case is then ready for trial or will be when the jurors are thereafter brought into court, might, and sometimes would, result in the case not being ready for trial when the jurors are brought into court, necessitating the postponement of the trial to a later day, or to the next term of the court with the accompanying inconvenience and expense. The purpose of the statute will be accomplished by holding, as the practice is, that a request for a special venire must be made when the court ascertains and announces that the case is ready for trial. When the appellant's counsel announced that he was ready for trial of the case and the court also announced that it was ready to proceed therewith, he should have requested the special venire, if he then desired it, or obtained permission from the court to request it at a later date. Counsel does not contend that such permission was here granted but only that he did not understand that the setting of the case for call the following Wednesday was for the purpose of trying it then, and that he advised the court that he would determine whether he wanted a special venire after the jurors for the regular panel for the next week were empanelled. When the court announced ready for trial, the request for a special venire became due without reference to the time then set for trial. It may be, as to which we express no opinion, that if the request is thereafter made in ample time for the special venire to be drawn, summoned, and to appear on the day set for the trial, the request therefor should be granted. But such is not the case here. If the appellant's counsel stated to the court, when the case was set for trial, that he would decide later whether he wanted a special venire, it is clear that the court did not so understand and did nothing to mislead counsel in thinking the contrary; and it is hardly probable that it would have consented to the postponement of the request to a time so near to the day set for the trial.

Affirmed, and sentence to be executed on Thursday, January 7, 1943.