Tilman P. Leathers v. The State of Mississippi, 26 Miss. 73

Mr. Chief-Justice Smith delivered the opinion of the court. The plaintiff in error was convicted of an assault with intent to commit murder, on an indictment framed under the 33d section', ch. 64, of the statute of 1839, Hutch. Dig. 960. Numerous objections are urged to the validity of the judgment rendered in the circuit court, all of which, with the exception of that which arises on the third plea of defendant in abatement to the indictment, we deem it unnecessary to notice. That plea was demurred to, and the demurrer was sustained.

The said plea in substance avers, that thirty-six persons were not drawn and summoned, as directed by law, to serve as jurors for the first week of the ensuing term of the circuit court of Pontotoc county, and from which, by law, the grand jury for said term were to be selected; but that forty persons were drawn and summoned, and from whom the grand jury who preferred the bill of indictment, were in fact selected. The exception to the judgment on the demurrer is based upon the provisions of the 8th

section of the statute of March 2d, 1833, Hutch. Dig. 888, which directs that “in the several counties of this State, except'the county of Monroe, where the term of the court continues for more than one week, the sheriff and clerk shall draw for the first week, in the manner now prescribed by law, thirty-six jurors, out of which the grand juries shall be drawn, and shall serve for one week, except the grand jurors, who shall serve until they are discharged by the court.” The circuit court for the county of Pontotoc may, by law, be held for the term of two weeks.

It was said by the attorney-general in the argument at bar, that the county of Pontotoc was not created until many years after the enactment of said statute. That there is no statutory provision by which the act above quoted is made to apply to counties thereafter to be organized; and hence it should not be held to regulate the drawing and impanelling juries for the counties subsequently created.

In reply to this, it is sufficient to observe, that the said act is general, except as to the county of Monroe, and was manifestly intended by the legislature to apply to all the circuit courts to be holden in the counties then in existence, or which might thereafter be created by statute. In McQuillen v. The State it was holden, that a grand jury, composed of members who have not been drawn, summoned, or impanelled in the manner prescribed by law, have no power to find a valid indictment.

A grand jury, said the late chief-justice, does not, by our law, consist of thirteen men congregated by the mere order of court, or by accident, in a jury box; but it consists of the requisite number of competent individuals, selected, summoned, and sworn according to the forms of law; and if the law be not followed, it is an incompetent grand jury. The same doctrine has since been repeatedly recognized .as the settled law of the State. Rawls v. The State, 8 S. & M. 599; Stokes v. The State, 2 Cushm. 621.

It cannot be doubted that the act of the clerk and sheriff, in drawing forty persons instead of the number prescribed by law, was a palpable violation of the statute; and if it should be held valid, an end at once is put to the authority of the law which prescribes the mode in which grand juries are to be constituted. For if the officers charged with the duty, and who are empowered to select by lot forty per-sons, from whom the grand jury may be chosen, instead of the legal number, they may, with equal propriety, draw any number, either greater or less, which their caprice may direct.

And if the specific directions of the law may be violated in one respect, why not in any or every other ? But the same reason which makes it imperative upon the courts to observe the directions of the statute in one case, requires our obedience in every other. The various regulations which have been adopted in regard to the constitution of juries, we apprehend, were designed for wise purposes. They are all intended as guards to protect the liberty of the citizen, and should be held to constitute an important part of the right of trial by jury.

Holding this view of the subject, we are compelled to reverse the judgment, to overrule the demurrer, and to quash the indictment.