McMILLAN v. STATE

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Docket Number

No. 34495.

Attorney(S)

C.B. Hutchison, of Tupelo, for appellant. Section 2059, Code of 1930, provides for the empanelling of petit juries and requires them to be sworn for the term and tales jurors for the day. Waddell v. Magee, 53 Miss. 687. The minutes failed to disclose that the juries were sworn unless the court can presume that "etc." meant the swearing of the juries. Nothing can be presumed for or against a record except what appears substantially upon its face. When, upon the record, it does not appear directly that a jury has been sworn the court will not intend that they were sworn, when it appears only that the jury gave a verdict "as a jury upon oath." 16 R.C.L. 293; State v. Mitchell, 199 Mo. 105, 97 S.W. 561, 8 Ann. Cas. 749, and note; Wolf and George v. Martin, 1 How. 30. The court erred in allowing the memorandum of V.S. Whitesides to be introduced for the following reasons: (1) the memorandum was never properly identified, and (2) the accused had a right to be confronted by the witness. Sec. 26, Const. of 1890; Dominges v. State, 7 S. M. 475; Penn v. State, 62 Miss. 450; Foster v. State, 70 Miss. 755, 12 So. 822. W.D. Conn, Jr., Assistant Attorney-General, for appellee. Appellant seems not to have been represented by counsel at the trial of the case, nevertheless he is held to the same rules of practice and procedure as is one who is so represented. Dugan v. State, 151 Miss. 781, 119 So. 298. In the absence of an affirmative showing that the jury was not sworn it will be presumed by this court that the jury in a criminal case was sworn to try the issues. McFarland v. State, 110 Miss. 482, 70 So. 563. This court many years ago held that the matter of whether a trial jury was or was not sworn could not be raised in this court for the first time. Alexander v. State (Miss.), 22 So. 871; Hill v. State, 112 Miss. 375, 73 So. 66; Cummings v. State (Miss.), 155 So. 179; Miller v. State, 122 Miss. 19, 84 So. 161. No objection was offered to the introduction in evidence of this memorandum, and it is one of the most common rules of law that error cannot be predicated on the admission of evidence, even though improper, unless there be objection made at the time. Jackson v. State, 163 Miss. 235, 140 So. 683.

Judges

Anderson, J., delivered the opinion of the court.

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McMILLAN v. STATE.

1. GRAND JURY. Jury.

The words "having been organized," in record stating "the grand and petit juries having been organized," meant that jury was legally organized and that statutory oath was administered and that the other things required by law were done.

2. CRIMINAL LAW.

In absence of affirmative showing to contrary, it will be presumed on appeal that jury in criminal case was sworn.

3. CRIMINAL LAW.

The question of whether jury was sworn cannot be raised on appeal for the first time.

4. CRIMINAL LAW.

Alleged error in admission of certain written evidence on behalf of state would not be considered by Supreme Court where no objection was made in trial court to introduction of such evidence.

Anderson, J., delivered the opinion of the court.

Appellant was indicted, tried, and convicted in the circuit court of Lee county of the crime of false pretense, and sentenced to the penitentiary for the term of three years. From that judgment he prosecutes this appeal.

Appellant was not represented by counsel in the trial court. The questions raised on this appeal were not raised in the court below, and therefore of course were not passed on. Appellant contends that he is entitled to a reversal of the judgment because the record of the trial does not affirmatively show that the jury convicting him were sworn. The record shows the following: "Proclamation having been made by the sheriff as the manner is, and the Court being called to order by the Judge and the grand and the petit juries having been organized," etc. The phrase, "having been organized," carries with it the idea that the jury was legally organized — the statutory oath administered and the other things done required by law. Furthermore, in the absence of an affirmative showing to the contrary, it will be presumed on appeal that the jury in a criminal case was sworn. McFarland v. State, 110 Miss. 482, 70 So. 563. The question cannot be raised on appeal for the first time. Alexander v. State (Miss.), 22 So. 871; Hill v. State, 112 Miss. 375, 73 So. 66; Cummings v. State (Miss.), 155 So. 179.

Appellant argues that the court erred in admitting certain written evidence to go before the jury on behalf of the state. No objection was made in the court below to its introduction. It is too late now to question its competency. Jackson v. State, 163 Miss. 235, 140 So. 683.

Affirmed.

McMILLAN v. STATE.

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