McMillan v. State

Counsel

John G. Leggett and R.B. Reeves, of McComb, for appellant. The court convened as required by law. No grand jury was empaneled and no petit jury was empaneled. The court merely met, called the docket and adjourned until the following Monday, at which time a petit jury was empaneled and this defendant was tried and convicted, and we take the position that in the absence of statutory authority the court had no right to arbitrarily dispense with the empaneling of a grand jury and that this court was not legally organized and was without jurisdiction to try this defendant. Section 473 of the Code of 1930, giving the dates on which circuit court shall convene in the various counties of the state, makes a provision in some of the counties with reference to this. We especially notice that in the first district in Pontotoc County, we find these words: "and at the May term of the county of Lee and at the June term of the county of Monroe the Judge by order in vacation entered on the minutes of the court prior to the assembling thereof may dispense with the grand jury, if he deems it advisable." If it was not necessary to have a statute granting this authority, why did the legislature put such a provision in the Code applicable to only certain counties? It occurs to us to be sound reasoning that no such authority exists until and unless such a provision is made by the legislature specifically granting such authority. This is true because other sections make it mandatory that a grand jury be empaneled. In this case there is no provision whereby the grand jury may be dispensed with as is the case in Pontotoc County. Then, too, the statute provides a specific remedy if the circuit judge deems it advisable to dispense with the grand jury he must do so by an order in vacation and said order must be entered on the minutes of the court prior to the assembling thereof and in this case there was no order dispensing with the grand jury. There was no order placed on the minutes prior to the assembling of the court, but the court drew the names to be used as grand jurors and petit jurors for the first week and then orally instructed the sheriff not to summon them, and this is contrary to statute in that, first, there is no such provision of authority for Amite County at the February term, and, second, if there had been it would have been necessary to place the order on the minutes, in vacation, and prior to the assembling of court. F.D. Hewitt, of McComb, for appellant. This attorney was not of counsel for the appellant when this case was tried, briefed or considered by this court. This being purely a circumstantial case, the granting of the instruction for the state, which is assigned as error by the appellant, is clearly wrong. Moore v. State, 195 So. 695 . W.D. Conn, Jr., Assistant Attorney-General, for appellee. While appellant has assigned several alleged errors, he argues only one and that is that the court erred in overruling his motion to quash the indictment. We do not propose to make any extended argument upon the matter presented here for the reason that we think the situation is controlled by the opinion of this court in Perry v. State, 154 Miss. 459 , 122 So. 744 . Under this decision of the court this motion to quash was properly overruled and appellant was properly tried at that term of court.