SMITH v. STATE

S.C. Mims, of Grenada, for appellant.

When the appellant's case was called for trial, the court conceived the idea that the regular panels for the week were disqualified and directed the sheriff to go out into the body of the county and bring in thirty jurors from which to select a jury to serve in this case. The appellant, after establishing the fact that the jury box was not exhausted, objected to the jury on the grounds that it was not a legal jury, which objection was overruled. This action of the court is the only error assigned.

The legislature provided a scheme for securing jurors for jury service and provided that the boards of supervisors should select the jurors from the qualified voters and determine who were persons of good intelligence, sound judgment, and fair character, and it was not intended by the legislature that this office by the trial courts should be delegated to the sheriffs of the counties. If such had been the intention of the legislature it easily could have so provided. This was in effect what the learned trial court did in the case at bar.

See Sanders Cotton Mills v. Moody, 191 Miss. 604, 2 So.2d 815; Laws of 1938, Ch. 304.

Under the Constitution the appellant was entitled to a trial by a legal jury. Not only a jury of twelve men, but a jury that had been brought into court in the manner provided by law. And in the instant case such was not the case.

The state insists that the conviction of the appellant should be affirmed for the reason that the record overwhelmingly discloses her guilt, and cites numerous cases in support of his position.

The violation of a constitutional right cannot be harmless error.

McCulloch v. State, 194 Miss. 851, 13 So.2d 829.

Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, and J.P. Coleman, of Ackerman, for appellee.

The proof of the guilt of the defendant was so clearly made that had the jury returned a verdict of not guilty it would have indicated bias on the part of the jury in favor of the appellant, and all errors in such cases are harmless unless they go to the extent of amounting to a denial of some constitutional right of the defendant.

McCulloch v. State, 194 Miss. 851, 13 So.2d 829; Smith v. State (Miss.), 6 So.2d 134; Fugler v. State, 192 Miss. 775, 7 So.2d 873.

The only error asserted by the appellant is that the jury which tried the appellant was improperly drawn, and she bases this contention on Sanders Cotton Mills v. Moody, 191 Miss. 604, 2 So.2d 815. In the case now on appeal, both juries, number one and number two, of the regular panels for the week, were disqualified from trying this case. The defendant agreed to that in open court. The jury boxes had been exhausted in some of the districts of the county, according to the sworn testimony of the circuit clerk. The defendant, in her objection to the sheriff summoning special talesmen from the body of the county, did not show the extent to which these boxes were empty. The court directed the sheriff to go out into the body of the county, away from the courthouse, and bring in thirty jurors to serve in this case. The jury summoned by the constable in Sanders Cotton Mill v. Moody, supra, was being impaneled for the entire week as the regular jury of the week. It was not a case where a particular trial was begun and it was learned that the regular jury for the week was disqualified. Under the contention of the appellant in this case, the Supreme Court is requested to rule that when the trial court begins the trial of a case and finds that all the regular jurors for the week are disqualified, then it is reversible error if the court does not halt the trial, keep the witnesses present, and suspend business, until names can be drawn from a box which is at least partially exhausted, and send, in many instances, to the furthermost boundary of the county to bring in a man and determine whether or not he is a qualified juror. We submit that this is beyond the intent of Chapter 304 of the Laws of 1938, and it is beyond the intent of the court in its decision in Sanders Cotton Mill v. Moody, supra.

Suppose eleven men are qualified to try a particular case, have been passed on by both sides, the regular jurors for the week have been exhausted, and neither side has consumed its peremptory challenges, is it the meaning of the statute and of the rule in Sanders Cotton Mill v. Moody that the court will have to suspend the trial at that point and draw names from a box and halt all proceedings until those men can be brought in? We believe that a reasonable interpretation would be that in organizing the court for the week, the trial court is bound to get the names from the box if there is one, but that it is not obligated to resort to the box for names for an individual trial under circumstances such as are involved in this case. Its only duty would be to see that fair and impartial men, away from the courthouse, be summoned from the body of the county to serve as jurors.