Mode Parker was indicted for the murder of Tommy Comans, convicted of manslaughter and sentenced to the State penitentiary for ten years, from which he appeals.
On August 6, 1945, which was Monday and the first day of the term of court, the case was set for call the following Wednesday. On Wednesday appellant made a motion for continuance of the case to a later day in the term because of the absence of Miss Laura Fulton (then *Page 583 Mrs. Eley). The court overruled that motion. That action is assigned as error. The record discloses that Mrs. Eley's testimony would only have been cumulative and tended to impeach that of a State's witness. In addition, she did not testify in support of appellant's motion for a new trial, nor was her affidavit produced showing what her testimony would have been, although her situation was such that she could have given an affidavit. On the other hand, a letter from her, appearing in the record, indicates that her testimony would have been of the character as above stated. The trial judge has broad discretion in granting and refusing continuances, and Section 1520, Code 1942, enjoins upon this Court the duty not to reverse a case because the trial court refuses a continuance unless we are "satisfied that injustice resulted therefrom." A review of this record does not satisfy us that injustice resulted to defendant from this action. We cannot reverse the trial judge under these circumstances. Goins v. State, 155 Miss. 662, 124 So. 785; Maddox v. State, 173 Miss. 799, 163 So. 449; Sistrunk v. State,200 Miss. 437, 27 So.2d 606.
Appellant moved the Court to ". . . enter a mistrial in this case, quash the jury panel and direct a venire facias to be drawn on the resetting of the case," because the Judge had excused from jury service, before the case was called for trial and not in open court and without prior notice to appellant, twenty-six of the veniremen who had been summoned for jury duty. The Court overruled the motion and this is urged as reversible error. Appellant says the Judge had no power to hear and pass upon requests of jurors to be relieved of service except in open court. Section 1764, Code 1942. The State replies (1) that compliance with that Section is discretionary, but, if, not (2) the error was cured in this case, and (3) that Parker cannot complain, because it is not shown that he was in any manner prejudiced by this action of the Judge. On motion of appellant the Court had ordered that ninety persons be summoned on a special venire. Seventy-four *Page 584 of these were summoned, the others, for various reasons, not being found, about which no question is raised. Of the seventy-four who were summoned the trial judge excused twenty-six before calling the case for trial. As we understand, these jurors, with one or two exceptions, appeared personally before the judge in chambers and made their requests and gave their reasons for discharge. None were excused in the courtroom in open court and no notice was given Parker, or his counsel, of any request before the twenty-six were thus excused. As best we can determine from the record, seven were excused because they claimed to be ill; seven for business reasons; five because of family illness; two were over age for jury service; five were disqualified for jury service, one having been convicted of a crime and the other four being qualified voters.
We will deal with the discretionary feature of Section 1764 and the effect of failure to literally comply therewith. That Section defines those who are exempt from, and who are subject to, jury service and the manner of presenting excuses from such service. The manner of presenting excuses is the question involved here. Excuses based on personal illness of the juror or illness in his family "must be made either under the oath of the juror in open court or by certificate of a competent physician, made of his own knowledge and not by hearsay." Excuses based upon business reasons, or emergencies, ". . . must be made by the juror, in open court, under oath or by affidavit filed with the clerk and heard and examined in open court . . .," but if the excuse is such it would embarrass the juror if heard in open court, the judge may hear it in chambers in the presence of the sheriff or his deputy.
Section 1796, Code 1942, reads: "A challenge to the array shall not be sustained, except for fraud, nor shall any venire facias, except a special venire facias in a criminal case, be quashed for any cause whatever." *Page 585
Section 1798, Code 1942, provides, "All the provisions of law in relation to the listing, drawing, summoning and impaneling juries are directory merely; and a jury listed, drawn, summoned or impaneled, though in an informal or irregular manner shall be deemed a legal jury after it shall have been impaneled and sworn; and shall have the power to perform all the duties devolving on the jury." All these sections must be considered together in determining the duty of the judge and the effect of his failure to literally comply with Section 1764.
And we observe, in the first place, that a literal compliance with that statute would often be impossible. For instance, it requires excuses for personal illness to be presented in open court or by affidavit of a physician of his own knowledge. Suppose a juror became suddenly ill as he was departing for the courthouse to serve as a juror, yet with no time, or opportunity, to have a physician personally attend him and make an affidavit in time to present it to the Court when his name is called for jury service. Other circumstances showing the impossibility of strict compliance with the statute can easily be visualized. Therefore, it will not do to say that the accused is entitled to a reversal in every instance where the statute is not literally complied with. If so, few convictions could be sustained where special venires are used.
On the other hand, the statute is in the Code and should be complied with where it is practicable to do so. The main object in its enactment was to adopt a method of testing the genuineness of excuses from jury service. It is much easier and less embarrassing to present a feigned excuse in private than in public. There may be present in open court those who have information as to the accuracy of the excuse. The party may be embarrassed, too, by consciousness that his fellow citizens may think or know he is trying to shirk a public duty. And, furthermore, the statute is a protection to the trial judge, as a preventative to harassment in granting *Page 586 or refusing private requests. These, and other reasons which might be stated, impose on the judge the duty to require compliance with the statute except where it is impracticable to do so.
And this brings us to the point of stating a rule as to the result in case the judge violates or fails to perform his duty in this regard. That rule is this: It is not enough to warrant the court in quashing the venire that the trial judge has violated or failed to do his duty in this regard, but, to so warrant, the evidence and circumstances must show actual fraud or such flagrant violation of duty in this respect as that the proven facts and circumstances show a legal fraud on the rights of the defendant. Cook v. State, 90 Miss. 137, 43 So. 618.
There is no intimation of actual fraud in the case at bar. Nor do we think the facts and circumstances show any legal fraud on the rights of appellant. In the first place, we have examined all of the excuses given by the twenty-six jurors who were excused, and we cannot say, looking to the nature of requests, the learned trial judge would have been in error as to any one of them, had he acted upon them in open court. In the next place, we think the proceedings show there was no legal fraud on the rights of appellant. These proceedings were: On Monday, the first day of court, the case was set for call the following Wednesday, when it was called and set for trial Friday. On Friday, when counsel for appellant learned the twenty-six jurors had been excused, they proceeded to inquire of the judge and the sheriff at length the reasons for such excuses. A record was made of that inquiry, and at its conclusion said counsel made a motion that the court draw from the jury box and summon for jury service on that case thirty additional names "to replace those excused without consent of the defendant." The judge refused the motion at that time. Twenty-six of the venire-men present were either disqualified or presented legal excuses. Counsel then renewed the motion for the additional thirty men. That request was repeated a *Page 587 number of times as the voir dire examination of the remaining veniremen and the two regular petit juries proceeded. When the special venire had been exhausted and two of the twenty-four members of the regular juries had been excused, and it appeared additional jurors might be needed to get a jury, the judge then ordered that the thirty additional persons be summoned, which was done, and a copy of this list, as summoned, was given able counsel appellant within the time as requested and agreed by them. Apparently, all of the additional thirty men were not used or needed to get a qualified trial jury, although it appears appellant had exhausted his peremptory challenges by the time the trial jury was impaneled. It is thus seen appellant got the benefit of thirty men to take the place of the twenty-six excused by the judge out of the courtroom. It may be noted, too, that the judge, in his discretion, might have summoned only forty men on the venire in the first instance. Section 1795, Code 1942. The foregoing facts and circumstances dispel any probability of legal fraud on the rights of appellant.
In addition, it is not shown that appellant was prejudiced by the foregoing action. It is pure speculation whether these excused jurors would have been more favorable to appellant than the additional thirty. Nor is there any showing that the jury finally impaneled and which tried him was not a fair and impartial jury. For an error to work a reversal it must be shown that the defendant was actually prejudiced or the circumstances be such that the court must presume prejudice. Cody v. State,167 Miss. 150, 163, 148 So. 627; Porter v. State, 193 Miss. 774, 776,10 So.2d 377.
Appellant assigns as error the rulings of the Court in admitting evidence on behalf of the State and sustaining objections to testimony offered by him. The assignment is largely couched in general terms. However, we have had in mind as we have read the testimony the general objection, as well as the specific objections, made here *Page 588 and at the trial, and we find no reversible error, if error at all, in the rulings of the judge on the testimony. In fact, looking at the record as an entirety, the rulings were favorable to the defendant. For instance, the Court permitted him to prove not only the fact of two prior personal difficulties with Comans but many of the details thereof and that Comans was the aggressor therein.
We do not find any reversible error in this record.
Affirmed.