Campbell v. State

Counsel

Jacobson, Snow Covington and J.V. Gipson, all of Meridian, for appellant. In the instant case a special venire of sixty men was allowed appellant by order of the court, but through no fault of the appellant only eighteen of the sixty men drawn on the special venire were presented to him. Appellant would have been entitled to a supplemental special venire. He had the right under the statute to have a minimum of forty special veniremen brought into court. It is not enough simply to draw 60 names or 40 names from the jury box and present a defendant with a list of those names. The men whose names have been drawn are required by the statute to be brought into court and tendered the accused. The statute provides that when the special venire is exhausted, and the jury has not been obtained from the special venire, jurors shall then be drawn from the regular panel for the week of the trial. If no regular panel has been drawn according to law, then no legal panel exists. The statute requires that there be a legal panel of jurors for each week of court, and a defendant is entitled to look to that panel for jurors where special venire requested has been exhausted. He cannot be lawfully denied his right to look to this regular panel. The presiding judge attempted to impanel two juries for the week, but he ignored the statute in so doing and refused to get the members of these panels as required by the statute. Prior to the convening of court jurors had been drawn from the jury box for the regular panel for the week in question. Only eleven of the men drawn from the box qualified. The trial judge then called on the sheriff's force to go out and get twenty-five additional men to serve on the regular panels. Since this case was tried that method of obtaining men for jury service has been condemned by this court. The statute provides that where additional men are required for the regular jury panel names shall be drawn from the jury box. The statute is mandatory and not directory, where the failure to follow the statute is arbitrarily done, as in this case. The case of J.W. Sanders Cotton Mills, Inc., v. Moody, 191 Miss. 604 , 2 So.2d 815 , is controlling. See Laws 1938, Chapter 304, Chapter 84, Rep. Laws 1938. Fortunately, there is in the record in this case a list of the special venire drawn. There is also a list of the jurors who served in this case. Six men only of the special venire served. The other six men were members of the illegal panel. Appellant made due protest as regards this panel, and for the court's error in overruling appellant's motion to quash the panel this case should be reversed. The instruction complained of is an instruction to the jury on the weight of the evidence. In the recent case of Swanner v. State, 2 So. (2nd Series) 142, and in the case of Metropolitan Life Insurance Company v. Wright, 190 Miss. 53 , 199 So. 289 , the court condemned instructions wherein practically the same language was used as is used in the instruction here under consideration. Further, this instruction told the jury that if any witness had wilfully, knowingly and corruptly sworn falsely to any material matter such witness' testimony might be disregarded in its entirety. The words used prior to the Metropolitan case were "any material fact." The word "matter" and the word "fact" are not synonymous and convey different meanings. But, we will not spend any appreciable time in arguing the difference between the word "matter" and the word "fact," as the court has firmly planted itself on the proposition that an instruction based on the principle "Falsus in uno, falsus in omnibus" is erroneous and violates Section 586, Mississippi Code 1930. Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee. It is submitted that the appellant is not entitled now to raise the point that he seeks to raise invoking Chapter 304 of the Laws of 1938, because it did not make a record which would show that the jurors who tried the case, or any of them, were taken from the twenty-five names summoned by the Sheriff under the direction of the court. It may be quite possible and, if so, the court must presume that such was a fact that the entire twelve who tried the appellant were taken from the eighteen names qualified on the special venire and the eleven drawn from the jury box, who qualified on the voir dire examination and who were accepted as jurors for the week. In order to avail of the provisions of Chapter 304, Laws of 1938, the appellant must take timely acception at or prior to the time the jury is empaneled for the week and cannot raise the question thereafter in a special case in which the jury, or some of them, might be attending court by raising the question at a later time. Having failed so far as the record shows to raise the question now sought to be invoked by moving to quash before the empaneling of the regular juries for the week, such of the twenty-five names as were qualified and accepted by the judge, he must now suffer for failing to do so. The instruction in this case is applicable to a large number of witnesses whose testimony is in conflict and many of the witnesses must have known they were swearing falsely. The jury were not told in this case that any witness had in fact sworn falsely nor were they told what weight to give to any witness or any particular testimony. They were merely told that if they believed that any of the witnesses had corruptly and wilfully sworn falsely to a material matter the jury could disregard their testimony, if they believed it was untrue. The jury were not told in the instruction to disregard it but merely told that they might disregard it, if they believed it was false and that the false swearing was wilfully and corruptly done. Certainly it seems to me such a statement under the facts of this case should not cause a reversal of the conviction.