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  • Murray L. Williams, Water Valley, for appellant. I. The Court erred in extending the term of court beyond the term designated by statute; and the trial and conviction of appellant during the extended term of court, over the objection of appellant, was and is wholly void. Candate v. State, 196 Miss. 711, 18 So.2d 441; Walton v. State, 147 Miss. 851, 112 So. 790; Secs. 1395, 1647, Code 1942; 15 C.J.S., Sec. 240 p. 886; 21 C.J.S., Sec. 154 p. 243. II. The Court erred in overruling the objections of appellant to the manner in which the jury was drawn in the following respects, to-wit: After the two regular juries summoned for jury service in the fourth week of the term had been exhausted, the Court ordered that the sheriff summon twenty-five (25) men from the body of the county. The sheriff and his entire staff of deputies were witnesses for the prosecution against the appellant, were highly prejudiced, and appellant was denied a fair and impartial trial inasmuch as the jurors should have been summoned and drawn from the regular jury box as required by Section 1794 of the Mississippi Recompiled Code of 1942 instead of being handpicked by the sheriff and his deputies who were witnesses for the prosecution. J.W. Sanders Cotton Mills v. Moody, 191 Miss. 604, 2 So.2d 815; Moffett v. State, 220 Miss. 587, 71 So.2d 303; Smith v. State, 251 Miss. 241, 169 So.2d 451; Secs. 1772, 1794, Code 1942. III. The Court erred in admitting evidence on behalf of the State over the objections of appellant. IV. The Court erred in denying appellant's request for a peremptory instruction. Barnes v. State, 239 Miss. 756, 125 So.2d 293; Foster v. State (Miss.), 49 So.2d 258; Millwood v. State, 190 Miss. 750, 1 So.2d 582; Riley v. State, 204 Miss. 562, 37 So.2d 768; Rogers v. State, 198 Miss. 495, 22 So.2d 550; Shumpert v. State, 229 Miss. 730, 91 So.2d 747; Sec. 2613, Code 1942. V. The Court erred in granting the instructions requested by the State. VI. The Court erred in denying the motion of appellant for a mistrial. VII. The verdict of the jury is contrary to and against the overwhelming weight of the evidence. VIII. The Court erred in overruling the motion of appellant for a new trial. Delos H. Burks, Asst. Atty. Gen., Jackson, for appellee. I. The Court did not err in extending the term of court beyond the term designated by statute; and the trial and conviction of appellant during this extended term of court, over the objections of appellant, was and is not void. Hughes v. State, 188 Miss. 554, 195 So. 311; Jones v. State, 227 Miss. 518, 86 So.2d 348. II. The Court did not err in overruling the objections of appellant to the manner in which the jury was drawn. J.W. Sanders Cotton Mills v. Moody, 191 Miss. 604, 2 So.2d 815; McCary v. State, 187 Miss. 78, 192 So. 442; Moffett v. State, 220 Miss. 587, 71 So.2d 303; Smith v. State, 196 Miss. 524, 18 So.2d 300; Smith v. State, 242 Miss. 728, 137 So.2d 172; Smith v. State, 251 Miss. 241, 169 So.2d 451; Wilkerson v. State, 207 Miss. 556, 42 So.2d 745. III. The Court did not err in admitting evidence on behalf of the State over the objections of appellant. IV. The Court did not err in denying appellant's request for a peremptory instruction. Barnes v. State, 239 Miss. 756, 125 So.2d 293; Foster v. State (Miss.), 49 So.2d 258; Millwood v. State, 190 Miss. 750, 1 So.2d 582; Murphy v. State, 223 Miss. 290, 78 So.2d 342; Riley v. State, 204 Miss. 562, 37 So.2d 768; Shumpert v. State, 229 Miss. 730, 91 So.2d 745. V. The Court did not err in granting the instructions requested by the State. Bailey v. State, 174 Miss. 453, 165 So. 122; Brooks v. State, 178 Miss. 575, 173 So. 409; Frierson v. State, 250 Miss. 339, 165 So.2d 342; Holmes v. State, 199 Miss. 137, 24 So.2d 90; Neilson v. State, 149 Miss. 223, 115 So. 429; Whitehead v. State, 246 Miss. 530, 151 So.2d 196. VI. The Court did not err in denying the motion of appellant for mistrial. VII. The verdict of the jury is not contrary to and against the overwhelming weight of the evidence. VIII. The Court did not err in overruling the motion of appellant for a new trial.
Judges
  • PATTERSON, J.
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  • Murray L. Williams, Water Valley, for appellant. I. The Court erred in extending the term of court beyond the term designated by statute; and the trial and conviction of appellant during the extended term of court, over the objection of appellant, was and is wholly void. Candate v. State, 196 Miss. 711, 18 So.2d 441; Walton v. State, 147 Miss. 851, 112 So. 790; Secs. 1395, 1647, Code 1942; 15 C.J.S., Sec. 240 p. 886; 21 C.J.S., Sec. 154 p. 243. II. The Court erred in overruling the objections of appellant to the manner in which the jury was drawn in the following respects, to-wit: After the two regular juries summoned for jury service in the fourth week of the term had been exhausted, the Court ordered that the sheriff summon twenty-five (25) men from the body of the county. The sheriff and his entire staff of deputies were witnesses for the prosecution against the appellant, were highly prejudiced, and appellant was denied a fair and impartial trial inasmuch as the jurors should have been summoned and drawn from the regular jury box as required by Section 1794 of the Mississippi Recompiled Code of 1942 instead of being handpicked by the sheriff and his deputies who were witnesses for the prosecution. J.W. Sanders Cotton Mills v. Moody, 191 Miss. 604, 2 So.2d 815; Moffett v. State, 220 Miss. 587, 71 So.2d 303; Smith v. State, 251 Miss. 241, 169 So.2d 451; Secs. 1772, 1794, Code 1942. III. The Court erred in admitting evidence on behalf of the State over the objections of appellant. IV. The Court erred in denying appellant's request for a peremptory instruction. Barnes v. State, 239 Miss. 756, 125 So.2d 293; Foster v. State (Miss.), 49 So.2d 258; Millwood v. State, 190 Miss. 750, 1 So.2d 582; Riley v. State, 204 Miss. 562, 37 So.2d 768; Rogers v. State, 198 Miss. 495, 22 So.2d 550; Shumpert v. State, 229 Miss. 730, 91 So.2d 747; Sec. 2613, Code 1942. V. The Court erred in granting the instructions requested by the State. VI. The Court erred in denying the motion of appellant for a mistrial. VII. The verdict of the jury is contrary to and against the overwhelming weight of the evidence. VIII. The Court erred in overruling the motion of appellant for a new trial. Delos H. Burks, Asst. Atty. Gen., Jackson, for appellee. I. The Court did not err in extending the term of court beyond the term designated by statute; and the trial and conviction of appellant during this extended term of court, over the objections of appellant, was and is not void. Hughes v. State, 188 Miss. 554, 195 So. 311; Jones v. State, 227 Miss. 518, 86 So.2d 348. II. The Court did not err in overruling the objections of appellant to the manner in which the jury was drawn. J.W. Sanders Cotton Mills v. Moody, 191 Miss. 604, 2 So.2d 815; McCary v. State, 187 Miss. 78, 192 So. 442; Moffett v. State, 220 Miss. 587, 71 So.2d 303; Smith v. State, 196 Miss. 524, 18 So.2d 300; Smith v. State, 242 Miss. 728, 137 So.2d 172; Smith v. State, 251 Miss. 241, 169 So.2d 451; Wilkerson v. State, 207 Miss. 556, 42 So.2d 745. III. The Court did not err in admitting evidence on behalf of the State over the objections of appellant. IV. The Court did not err in denying appellant's request for a peremptory instruction. Barnes v. State, 239 Miss. 756, 125 So.2d 293; Foster v. State (Miss.), 49 So.2d 258; Millwood v. State, 190 Miss. 750, 1 So.2d 582; Murphy v. State, 223 Miss. 290, 78 So.2d 342; Riley v. State, 204 Miss. 562, 37 So.2d 768; Shumpert v. State, 229 Miss. 730, 91 So.2d 745. V. The Court did not err in granting the instructions requested by the State. Bailey v. State, 174 Miss. 453, 165 So. 122; Brooks v. State, 178 Miss. 575, 173 So. 409; Frierson v. State, 250 Miss. 339, 165 So.2d 342; Holmes v. State, 199 Miss. 137, 24 So.2d 90; Neilson v. State, 149 Miss. 223, 115 So. 429; Whitehead v. State, 246 Miss. 530, 151 So.2d 196. VI. The Court did not err in denying the motion of appellant for mistrial. VII. The verdict of the jury is not contrary to and against the overwhelming weight of the evidence. VIII. The Court did not err in overruling the motion of appellant for a new trial.
Judges
  • PATTERSON, J.
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Smart Summary

Case Summary — No. 43348 (October 4, 1965)

Factual and Procedural Background

The appellant, Carl Murphy, Jr., was indicted in the Circuit Court of Lee County, Mississippi, for a third offense of possession of intoxicating liquor under Mississippi Code Annotated section 2613 (1956). He was tried during the regular May 1964 term. On May 29, a day of that regular term, the trial resulted in a mistrial. The court then announced the case was set for retrial on Monday, June 8, the date statutorily designated as the opening day of court in Monroe County (a county in the same judicial district). An order was entered extending the Lee County term to include June 8. On retrial during this extended term the appellant was convicted and sentenced to the penitentiary. The appellant appealed, challenging, among other things, the court's authority to extend the term into the statutorily designated term of the adjoining county and contending the retrial and conviction during the extended term were void.

Legal Issues Presented

  1. Whether the trial court erred in extending the Lee County term of court beyond the time designated by statute so that it encompassed June 8 — the date statutorily designated as the opening day of court in Monroe County (an adjoining county in the same judicial district).
  2. Whether a retrial and conviction held during that extended term (i.e., on June 8) were unauthorized by law and therefore void when there was no case in progress that required continuation past the regular term.

Arguments of the Parties

Appellant's Arguments

  • The court erred in extending the term of court beyond the statutorily designated term; trial and conviction during the extended term were void. (Citations by appellant include Candate v. State; Walton v. State; statutes §§ 1395, 1647, Code 1942; and authorities in 15 & 21 C.J.S.).
  • The jury selection procedure was improper: after the two regular juries were exhausted, the sheriff summoned 25 men from the county rather than drawing from the regular jury box as required by statute, and the sheriff and deputies who were witnesses for the prosecution were involved — depriving appellant of a fair and impartial jury. (Cited: J.W. Sanders Cotton Mills v. Moody; Moffett v. State; Smith v. State; §§ 1772, 1794, Code 1942.)
  • The trial court admitted evidence over appellant's objections (no detailed citations provided in the brief excerpt).
  • The court erred in denying a peremptory instruction requested by appellant; various authorities cited (Barnes v. State; Foster v. State; Millwood v. State; Riley v. State; Rogers v. State; Shumpert v. State) in support.
  • The court erred in granting instructions requested by the State (no detailed citations provided in the excerpt for this point).
  • The court erred in denying appellant's motion for a mistrial.
  • The jury verdict was contrary to and against the overwhelming weight of the evidence.
  • The court erred in overruling appellant's motion for a new trial.

Appellee's (State's) Arguments

  • The court did not err in extending the term of court beyond the regular statutory term; trial and conviction during the extended term were not void. The State relies principally on Hughes v. State and Jones v. State to support that extension of a term is within the judge's discretion.
  • The court did not err in overruling objections to the manner in which the jury was drawn; the State cites cases supporting the propriety of the jury handling (including J.W. Sanders Cotton Mills v. Moody; McCary v. State; Moffett v. State; several Smith v. State citations; Wilkerson v. State).
  • The court did not err in admitting the contested evidence (no detailed citation in the excerpt for this point).
  • The court did not err in denying appellant's request for a peremptory instruction; authorities cited include Barnes v. State and other related precedents.
  • The court did not err in granting instructions requested by the State (citing Bailey v. State; Brooks v. State; Frierson v. State; Holmes v. State; Neilson v. State; Whitehead v. State).
  • The court did not err in denying the motion for mistrial.
  • The jury verdict was not contrary to or against the overwhelming weight of the evidence.
  • The court did not err in overruling the motion for a new trial.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Candate v. State, 196 Miss. 711, 18 So.2d 441 Cited by appellant as authority that extension/overlapping of terms in the district can render proceedings illegal. The court relied on Candate (along with Walton) as supporting the proposition that holding a term in one county during the time fixed by law for holding a term in another county of the same district is illegal; the court used this to hold the June 8 proceedings unauthorized.
Walton v. State, 147 Miss. 851, 112 So. 790 Cited regarding the illegality of a term held in one county during the time fixed by law for holding a term in another county of the same district. Court relied on Walton to support the rule against overlapping county terms when there is but one judge for the district; used in holding the extension into Monroe County's term unauthorized.
J.W. Sanders Cotton Mills v. Moody, 191 Miss. 604, 2 So.2d 815 Cited by parties in support of objections/answers regarding improper jury selection procedures. Case was cited by both parties in briefing on jury-selection issues. The opinion records the citation as part of the parties' arguments but does not base its disposition on this precedent.
Moffett v. State, 220 Miss. 587, 71 So.2d 303 Cited in relation to jury selection/voir dire procedure. Appears in the parties' citations on jury selection; the court did not rely on it as the basis for the opinion's holding on the term-extension issue.
Smith v. State, 251 Miss. 241, 169 So.2d 451 Cited by appellant/appellee in the context of jury selection challenges. Included among several Smith cases cited by the parties; the court's decision turned on statutory construction and overlapping-term authorities rather than this citation specifically.
Smith v. State, 196 Miss. 524, 18 So.2d 300 Cited by appellee concerning jury matters. One of multiple Smith citations in briefs; the court's ruling did not principally rest on this authority.
Smith v. State, 242 Miss. 728, 137 So.2d 172 Cited by appellee on jury-selection points. Part of appellee's compilation of authorities; not central to the court's statutory-construction holding concerning term extension.
Barnes v. State, 239 Miss. 756, 125 So.2d 293 Cited concerning denial of peremptory instruction. Both parties cited Barnes on peremptory-instruction law; the court referenced peremptory-instruction authorities in the briefs but reversed on the narrower ground of unauthorized extension of term.
Foster v. State (Miss.), 49 So.2d 258 Cited regarding standards for peremptory instructions. Cited by parties on the peremptory-instruction issue; the court's disposition did not hinge on this case in the opinion's analysis of the term-extension question.
Millwood v. State, 190 Miss. 750, 1 So.2d 582 Cited on peremptory-instruction law. Listed among authorities; the court did not base its reversal on this case specifically.
Riley v. State, 204 Miss. 562, 37 So.2d 768 Cited on peremptory-instruction law. Included in party citations; not central to the court's holding on term extension.
Rogers v. State, 198 Miss. 495, 22 So.2d 550 Cited by appellant in support of peremptory-instruction argument. Part of the appellant's brief authorities; the court's reversal related to statutory term limits and overlapping terms rather than to this authority.
Shumpert v. State, 229 Miss. 730, 91 So.2d 747 (also cited with 91 So.2d 745) Cited re: peremptory instructions and related trial procedure issues. Included among the party authorities on trial procedure; the court's decision turned on statutes and overlapping-term precedents rather than on Shumpert.
Hughes v. State, 188 Miss. 554, 195 So. 311 Cited by the State as controlling: holds extension of a term is within the judge's discretion and the appellate court will not inquire into abuse of that discretion. The court examined Hughes and determined it was distinguishable because Hughes did not involve a conflict with the statutory opening day of an adjoining county's term; thus Hughes was not controlling here.
Jones v. State, 227 Miss. 518, 86 So.2d 348 Cited by the State following Hughes to support that extension of the term is discretionary. The court reviewed Jones (which follows Hughes) but distinguished it on the same ground: neither Hughes nor Jones involved a conflict with the statutory opening day of another county in the same district.
McCary v. State, 187 Miss. 78, 192 So. 442 Cited by appellee in relation to jury-draw objections. Appears in appellee's list of authorities on jury matters; not key to the court's statutory construction holding in this opinion.
Wilkerson v. State, 207 Miss. 556, 42 So.2d 745 Cited by appellee regarding jury questions. Part of appellee's supporting authorities on jury issues; not central to the court's conclusion on term extension.
Murphy v. State, 223 Miss. 290, 78 So.2d 342 Cited by appellee in connection with peremptory-instruction argument. Included among authorities on peremptory instructions; the court did not base its reversal on it.
Bailey v. State, 174 Miss. 453, 165 So. 122 Cited by appellee in support of the propriety of the State's requested jury instructions. Used by appellee to justify instructions; the appellate court's reversal was on term-extension grounds and did not rest on this precedent.
Brooks v. State, 178 Miss. 575, 173 So. 409 Cited by appellee regarding instructions given for the State. Part of appellee's instruction-authority citations; the opinion's dispositive analysis concerned term overlap and statutory construction.
Frierson v. State, 250 Miss. 339, 165 So.2d 342 Cited by appellee in support of instructions given by the State. Cited by appellee; not the basis for the court's reversal in this opinion.
Holmes v. State, 199 Miss. 137, 24 So.2d 90 Cited by appellee regarding instruction authority. Included among appellee's instruction-related citations; the court's opinion focused on statutory timing and overlapping terms.
Neilson v. State, 149 Miss. 223, 115 So. 429 Cited by appellee in the context of instruction authority. Part of appellee's cited authorities; not determinative of the reversal here.
Whitehead v. State, 246 Miss. 530, 151 So.2d 196 Cited by appellee in support of the State's requested instructions. Included in appellee's authorities; not central to the opinion's statutory-construction holding.
Pittman v. State, 147 Miss. 593, 113 So. 348 (1927) Cited for the settled principle that a cause in progress at the expiration of term must be continued to conclusion (application of § 1647). The court relied on Pittman to explain that § 1647 allows continuation of trials in progress and completion of causes, but that authority does not permit extending a term into another county's statutorily designated opening when no cause is in progress.
Greenlee v. State, 188 Miss. 387, 195 So. 312 (1940) Cited on the point that the appellate court will not inquire into whether the judge abused discretion in extending a term (context with Hughes). The court noted Greenlee in discussing discretion to extend terms, but distinguished the present facts because Greenlee did not involve conflict with the statutory opening day of another county.
Ivey v. State, 154 Miss. 60, 119 So. 507 (1928) Holds judges are without authority to pretermit a term of court; cited on limits to judicial authority over court terms. The court invoked Ivey to support the proposition that judges are without authority to pretermit or otherwise violate statutory terms; used to bolster the conclusion that overlapping terms in this context are unauthorized.

Court's Reasoning and Analysis

The court's analysis proceeds from the undisputed facts: appellant tried during Lee County's May 1964 regular term; mistrial on May 29; court set retrial for June 8 and entered an order extending the term. June 8 was the date statutorily designated for the opening of Monroe County's term, and Monroe County is in the same circuit/district as Lee County.

The court framed the dispositive question as not whether the trial judge abused discretion in extending a term, but whether any discretion existed to extend a term into a date statutorily designated for another county in the district where there was no case in progress requiring continuation.

The opinion identifies and applies the relevant statutes: section 1394/1395 (statutory dates for holding court in each county; language "shall be held") and section 1647 (allowing continuation of a term "where...the business...may...make it advantageous" — using the discretionary "may"). The court emphasized the contrast between mandatory language ("shall be held") in the statute establishing calendar dates and discretionary language ("may continue") in the section authorizing continuation of terms in session.

The court acknowledged precedent (Hughes and Jones) holding that extension of a term is within the judge's discretion and that appellate review will not overturn an exercise of that discretion. However, the court found those cases distinguishable because neither involved a setting for retrial that conflicted with a statutorily fixed opening day in an adjoining county of the same judicial district.

The court relied on authorities that limit judicial power to alter or pretermit statutorily fixed terms (Ivey) and specifically on Candate and Walton for the principle that, where there is but one judge in a judicial district, holding a term in one county during the time fixed by law for holding a term in another county of the district is illegal and proceedings thereat will not be sustained.

Applying these principles, the court concluded that section 1647 permits continuation of causes in progress but does not authorize a court to extend its term so as to encompass the statutorily designated opening day of an adjoining county's term when no cause is in progress that requires completion. Because no case was in progress on the statutory opening day of Monroe County and the extension resulted in overlapping with Monroe County's statutory term, the court held the June 8 proceedings in Lee County unauthorized by law.

Holding and Implications

Holding: The court reversed and remanded. It held that the trial court was not authorized to extend the Lee County term to include June 8 — the date designated by statute as the opening day of court in Monroe County — where there was no case in progress that required continuation; consequently the proceedings on June 8, 1964, were unauthorized by law.

Implications:

  • Direct effect: The appellant's conviction obtained on retrial during the extended term (June 8) was set aside; the cause was reversed and remanded for a new trial.
  • The decision constrains a trial judge's ability to extend a term of court across a statutorily designated opening day for another county in the same judicial district when there is no pending cause that must be continued to conclusion. The court distinguished earlier cases recognizing judicial discretion to extend terms where no conflict with another county's statutory term exists.
  • The opinion's holding rests on statutory construction (the interplay of sections designating times for terms and the section authorizing continuation) and on precedent limiting overlapping terms; the court did not base its reversal on the other trial-errors alleged by appellant in the briefs.

Opinion by Patterson, J.; Ethridge, P.J., and Rodgers, Jones and Smith, JJ., concur.

Show full summary ...

MURPHY v. STATE

1. Courts — term of court extended in certain cases.

Cause in progress at expiration of term must be continued to conclusion. Sec. 1647, Code 1942.

2. Statutes — construction — words "shall" and "may".

In statutes, "shall" is mandatory and "may" is discretionary.

3. Courts — extending term of court — overlapping court terms.

Court, despite mistrial in criminal prosecution during regular term, was not authorized to extend term, for new trial, so as to include date designated by statute as opening day of court in adjoining county within district, there being no case in progress. Secs. 1394, 1395, 1647, Code 1942.

Headnotes as approved by Patterson, J.

PATTERSON, J.

The appellant, Carl Murphy, Jr., was indicted for violation of Mississippi Code Annotated section 2613 (1956), Possession of Intoxicating Liquor, for the third time in the Circuit Court of Lee County, Mississippi, at its regular May 1964 term. Pursuant to this indictment he was tried during a day of the regular May 1964 term. This resulted in a mistrial on May 29, a day of the regular term, whereupon the court announced that the case was again set for trial on Monday, June 8, the date designated by statute for court to convene in Monroe County, which is within the same judicial district as Lee County, and an order was entered by the court extending the regular term to include this date.

On retrial during this extended term the appellant was found guilty of the crime charged in the indictment and was sentenced to a term in the state penitentiary. From this conviction and sentence he appeals, assigning as error, among other things, that the court erred in extending the regular term of court beyond the time designated by statute and into the time specified by statute for the opening of court within another county of the same district; and that the trial and conviction of appellant during the extended term, the same not being authorized by law, was wholly void.

We are of the opinion this assignment of error is well taken, and that the cause must be reversed and remanded for a new trial. The language of Mississippi Code Annotated section 1394 (1956) is as follows:

The state is divided into eighteen circuit court districts as hereinafter provided, and the court in each county shall be styled "the circuit court of ____ county" and shall continue for the full number of days specified if the business shall require, and terms of the courts shall be held in each county beginning as follows: (Emphasis added.)

Mississippi Code Annotated section 1395 (Supp. 1964) designates the counties within the First Circuit Court District, and designates the time for the holding thereof. Included in this section is Monroe County, Mississippi, in these words:

Monroe County: . . . on the second Monday of June, for civil business exclusively, six (6) days. . . .

The trial court was aware of the conflict between the extension of the term of Lee County and the setting of this case on June 8, the second Monday of June, which was by statute the first day of the regular term of court in Monroe County within the same judicial district; but felt that the press of business in Lee County warranted the extension into the regular term of Monroe County since the docket there was quite light and since the extension was agreeable to the court officials and attorneys of the latter county.

The precise question for this Court to determine is not whether the court abused its discretion in extending the term, but whether the court had any discretion to exercise in view of the statute designating a specific date for the convening of court in Monroe County.

(Hn 1) The authority for the extension of a term of court then in session is Mississippi Code Annotated section 1647 (1956). This section provides for the completion of a trial in progress upon the expiration of the term, and it is the established law of this state, both by statute and case law, that a cause in progress at the expiration of the term must be continued to a conclusion. Pittman v. State, 147 Miss. 593, 113 So. 348 (1927). The concluding portion of section 1647 provides for the extension of a term then in session when considered advantageous or proper by the trial judge, the pertinent parts thereof being as follows:

And in all cases where, in the judgment of any judge or chancellor, the business of any circuit or chancery court may for any cause make it advantageous, or proper, so to do, such judge or chancellor may continue any term of court then in session by an order entered on the minutes of the court for such time as such judge or chancellor may determine. . . . (Emphasis added.)
(Hn 2) Though no elucidation is necessary to the plain terms of section 1395, designating the time for the holding of terms of court, and the subsequent section, 1647, authorizing the extension of terms of court then in session, we do point out that the language used in the former section is "shall be held" and in the latter section the language used is "may" and "may continue", one being mandatory and the other discretionary.

The State argues, however, that the case of Jones v. State, 227 Miss. 518, 86 So.2d 348 (1956) which followed Hughes v. State, 188 Miss. 554, 195 So. 311 (1940), is controlling on the legal point here in question. In Jones, 227 Miss. at 529, 86 So.2d at 349, we stated:

The term of circuit court was for a period of one week. As authorized by Code of 1942, Sec. 1647, the circuit judge entered an order extending the term for an additional week. It was during this second week of the term that appellant was tried. He contends that the court improperly extended the term of court. But it is established that the extension vel non of a term is within the discretion of the judge, and this Court will not inquire into whether or not that discretion was abused. Hughes v. State, 188 Miss. 554, 195 So. 311 (1940).

An examination of Hughes discloses that a felony trial resulted in a mistrial during a regular term of court; that the term was extended by the court and during this extended term the defendant was found guilty. One of the objections by the defendant to his trial during the extended term was that "the order for the extension of the term was made without the court having before it any evidence on which to determine the necessity for the extension." This Court in passing upon the question in Hughes, 188 Miss. at 561, 195 So. at 312, held:

That the record does not disclose that the order of extension was based on evidence or rather, as the appellant says, discloses that it was not based on evidence, is of no consequence. The extension vel non of the term was within the discretion of the judge and this Court will not inquire into whether or not that discretion was abused. . . .

Thus the court did not permit evidence to be introduced which questioned the discretion of the judge in extending the term. See also Greenlee v. State, 188 Miss. 387, 195 So. 312 (1940). These cases are distinguishable from the facts here since in neither of the cited cases did the date set for retrial conflict with the opening day of court as directed by statute. For this reason we are of the opinion that Jones and Hughes supra are not controlling.

In Ivey v. State, 154 Miss. 60, 69, 119 So. 507, 509 (1928) this Court held:

We are aware that a custom prevails in some districts for courts to be pretermitted, as the circuit judge attempted to do in this instance. We have concluded, however, that the judges are entirely without authority so to do. If a circuit judge in vacation could pretermit one term of the court, by the same authority he might pretermit another, clearly violating the mandate of section 158 of the Constitution.

And in Candate v. State, 196 Miss. 711, 718, 18 So.2d 441, 442 (1944) we held as follows in a case dealing with overlapping court terms within the counties of a district:

We must assume that the legislature was aware of the rule declared by this court in Walton v. State, 147 Miss. 851, 868, 112 So. 790, that where there is but one judge of a judicial district, a term held in one county or part of the district during the time fixed by law for holding a term in another county or part of the district is illegal and the proceedings thereat will not be sustained.
(Hn 3) We hold, in view of these authorities and Mississippi Code Annotated section 1395 (Supp. 1964), the court was not authorized to extend the term so as to include the date designated by statute as the opening day of court in an adjoining county within the district, there being no case in progress and necessary to bring to a conclusion. It follows that the proceedings on the second Monday of June 1964 during the extended term of court in Lee County were unauthorized by law and that the cause must be reversed and remanded for a new trial.

Reversed and remanded.

Ethridge, P.J., and Rodgers, Jones and Smith, JJ., concur.

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MURPHY v. STATE
(Oct 4, 1965)