Graham v. State

delivered the opinion of the court.

George Graham was convicted of murder and sentenced to life imprisonment in the penitentiary, from which judgment and sentence of the court this appeal is prosecuted. While there are numerous assignments of error which have been ably argued by counsel for appellant, there is only one which we think of sufficient importance for a written opinion.

It is contended that the record in this case shows affirmatively that the petit jury which convicted appellant was an illegal and unlawful body because it consisted of only eleven men, and was therefore not that jury contemplated by the Constitution.

That part of the judgment material to this decision is as follows: “Thereupon came a jury of good and lawful men of the county, to wit,-and eleven others, all duly elected, impaneled, and sworn.

•To sustain his position the appellant relies upon the cases of Hunt v. State, 61 Miss. 577, and Scott v. State, 70 Miss. 247, 11 So. 657, 35 Am. St. Rep. 649.

In the Hunt Case, supra, the clerk, in entering the judgment, after reciting that there “came a jury of *189good and lawful men, to wit,” attempts then to name all of the members of the jury, hut only named eleven men. The opinion of the court then asks the question:

“Must the judgment sentence he reversed because the record affirmatively shows that the defendant was convicted by eleven men only?”

And then: “No case could be reversed in this court by reason of any error or omission in the record even as to jurisdictional facts, and that therefore, when the error consisted of an omission to show even such a fact, we would assume that such fact existed unless the record affirmatively showed that, in fact, it did not exist. ... Is the present an instance only of an omission to show that there .were twelve men on the jury, or is it a case where the record affirmatively shows that there were eleven only? If it was merely an omission to show anything on the subject, the cases quoted above would govern it, otherwise not. . . . Though in several of our cases it seems understood that the word ‘jury’ necessarily imports twelve men, it is clearly decided by several cases that the court must reverse when the clerk uses that word, and at the same time affirmatively certifies that less than that number composed the panel which tried the particular case.” Hunt Case, supra.

The Scott Case is practically similar to the Hunt Case.

If the judgment in this case affirmatively showed that the appellant was tried by only eleven men, then it would be our duty under the two above authorities to reverse this case. The judgment in each of these two cases, however, after reciting that" the appellant was tried by a jury, attempted to name all of the members of- that jury, and in so doing affirmatively showed that there were only eleven .men who composed it. The judgment in this case is-quite different from those. This judgment recites that appellant was tried by a jury. *190There was no necessity to name all or any of the jury. The word “jury” imports and means that it consisted of twelve qualified jurors under the laws of the state. This general expression was modified in the Hunt and Scott Cases by the clerk naming, or rather attempting to name, every member of the jury. In the case at bar, however, it was evidently the intention of the clerk to insert in the blank space the name of one .of the members of the jury. This he failed to do. This quali-„ fying phrase then, namely, “-and eleven others,” is ambiguous and shows upon its face an omission of the clerk. We are asked to hold that.this ambiguous phrase nullifies the meaning of the word “jury.” This ambiguous phrase, really meaningless, unless we assume that the name of a juror was unintentionally omitted, cannot be said to affirmatively show that the appellant was tried by only eleven men. The phrase is either meaningless or shows upon its face an omission by the clerk to insert the name of one of the twelve jurors. The rule announced in the Scott and Hunt Cases is that it must affirmatively' appear from the judgment that the appellant was only tried by eleven men. Such fact does not affirmatively appear in this case.

The judgment of the lower court is affirmed.

Affirmed.