Appellant was indicted and convicted in the circuit court of Leake county of unlawfully possessing intoxicating liquor, and fined one hundred dollars. From that judgment appellant prosecutes this appeal.
The question was raised by appellant on this appeal for the first time that the indictment does not contain the circuit clerk's filing indorsement. There is the following indorsement on the back of the indictment: "No. ____. The State of Mississippi v. Hugh Wooten. A true bill. E.J. Jolly, Foreman of the Grand Jury. Witnesses: Mrs. Bruce Harrell, Mrs. Annie Harrell. Filed ____ day of 19__. ____, Clerk."
The record certified up by the clerk contains, first, a recital in the usual form of the organization of the circuit court in which the appellant was indicted, tried, and convicted. The minutes of the court contain this language: "There came on for trial and disposition, among other causes pending on the docket of said court at said term, the following, to-wit: The State of Mississippi v. Hugh Wooten, wherein the following proceedings were had and done of record, to-wit."
Then follows the indictment upon which appellant was tried, with the indorsement on its back above set forth. Following the indictment is the recital: "The defendant being arraigned and required to plead to said indictment, plead not guilty, whereupon the trial proceeded as follows."
Appellant's position is that the indictment in the record is not sufficiently identified as the indictment returned against him by the grand jury, and upon which he was tried and convicted, because of the absence of the filing indorsement of the clerk of the court. To sustain that contention appellant relies on Stanford v. State, 76 Miss. 257, 24 So. 536. In that case, the court held that *Page 729 the clerk's filing indorsement on the indictment was "the exclusive `legal evidence of the finding and presentation of the indictment,'" but the question was not raised for the first time on appeal. It was raised by demurrer in the trial court.
There is no decision of our court holding that this question can be successfully raised, for the first time, on appeal; but there are decisions of this court, as well as of courts in other jurisdictions, to the contrary. Article 257, chapter 64, page 614 of the Revised Code of 1857, and section 1418, Code of 1906, Hemingway's Code 1927, section 1235, contain substantially the same language with reference to the clerk's filing indorsement on indictments. They both provide that indictments must be marked filed by the clerk of the court, and that such entry be dated and signed by the clerk.
In Lee v. State, 45 Miss. 114, there was no filing indorsement of the clerk on the indictment. The question of the identity of the indictment was not raised in the trial court, but was raised for the first time in the supreme court. The court held that a recital in the record "that `on the 12th day of October, 1869, the grand jury of said county filed in said circuit court of said county aforesaid, an indictment in the words and figures following,' etc. [a copy of the indictment following under which the defendant was tried]," was sufficient to show that the indictment was duly presented and filed as required by law, it not appearing that any objection was made in the court below to the indictment as not having been filed.
In Green v. State, 28 Miss. 687, the question was, as here, the identity of the indictment upon which the defendant was tried and convicted. The court, in passing on the question, stated the pertinent recitals in the record, and the holding of the court in the following language: *Page 730 "`No. 400. The State v. George N. Green.' `This day the grand-jury, under the care of their proper officer, by the hands of their foreman, John Robertson, returned into open court a bill of indictment against George N. Green, the defendant in this case, for murder, indorsed by the foreman of said grand-jury a true bill.' Then immediately follows the indictment, answering the description of it contained in this entry, and indorsed and numbered in the same manner as the entry. Immediately following is an entry of the case, with the same number and style of parties above stated, showing the arraignment on the indictment and the plea of not guilty. The same circumstances of identity, the number of the case, the style of the parties, and the designation of the offence, appear in various other proceedings taken in the case, until it was removed to Marshall county for trial. If it was not sufficiently certain from the fact of the indictment immediately following the entry of its return into court by the grand-jury, that the indictment thus appearing in the record was the bill found by the grand-jury, all reasonable doubt upon the point must be removed by these additional evidences of identity."
Authorities from other states bearing on this question will be found collated in 31 C.J., p. 588, section 55, and 10 Encyc. Pl. Prac., pp. 416 and 417.
The courts of some jurisdictions hold that statutes of this character are not mandatory, but only directory; others hold that they are mandatory. The Florida, Iowa, and Missouri courts hold that the question cannot be raised for the first time by a defendant by motion in arrest of judgment after verdict, or on appeal. Willingham v. State, 21 Fla. 761; Pittman v. State,25 Fla. 648, 6 So. 437; Hughes v. State, 4 Iowa, 554; State v. Coupenhaver, 39 Mo. 430.
The case of Hays v. State, 96 Miss. 153, 50 So. 557, 558, involved a question close akin to the question here *Page 731 involved — so close that the principle there declared is controlling here. The requirement that grand juries be sworn before proceeding with their duties is mandatory. It was held in Cody v. State, 3 How. 27, Abram v. State, 25 Miss. 589, and Foster v. State, 31 Miss. 421, that it must affirmatively appear from the record that the grand jury had, in fact, been sworn. In other words, that the record of the proceedings was theexclusive evidence as to whether or not the grand jury had been sworn. The effect of the holding in those cases was that the absence of such evidence was fatal to the indictment, and could be raised by the defendant either on motion in arrest of judgment, or on appeal, for the first time. The court held in the Hays case that section 1413 of the Code of 1906, section 1229 of Hemingway's 1927 Code; section 1426 of the Code of 1906, section 1243 of Hemingway's 1927 Code; and section 1427 of the Code of 1906, section 1244 of Hemingway's 1927 Code, changed the rule declared by the court in those cases. It was said, among other things, in the Hays case: "The effect of the statutes above referred to is to change this rule, and now, where the record is silent as to matters of this character, and no objection thereto has been made before verdict, the court is required to presume that the same have been rightfully and regularly done. Ex parte Phillips, 57 Miss. 357; Spivey v. State, 58 Miss. 743. This is true, even though the matter complained of is jurisdictional in its nature. The statute does not provide that the court may proceed with the trial of the cause without doing those things necessary to invest it with jurisdiction, but simply that, after the trial has proceeded to verdict without objection, the court will conclusively presume, so far as those matters referred to in the statute now under consideration are concerned, that the same have been rightfully and regularly done. In other words, the defendant is not cut off from raising the jurisdictional *Page 732 question, but the statute merely limits the time in which the same may be raised."
Section 1413 of the Code of 1906, section 1229 of Hemingway's 1927 Code, provides, among other things, that no verdict or judgment in a criminal case shall be arrested, reversed, or annulled, after the same is rendered, for any defect of form which might have been taken advantage of before verdict. Section 1426 of the Code of 1906, section 1243 of Hemingway's 1927 Code, provides, among other things, that all objections to an indictment for any defect appearing on the face thereof shall be taken by demurrer to the indictment, and not otherwise, before the issuance of venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterwards.
We hold, under these statutes, that this question cannot be raised, for the first time, on appeal. To so hold does not trench upon the decision in the Stanford case. The holding in that case that the clerk's filing indorsement on the indictment was the exclusive legal evidence of the finding and presentation of the indictment is confined to the question when raised in the trial court. If it is not raised there, but on appeal for the first time, then, under the Lee and Green cases, the identity of the indictment may be shown otherwise by the record.
If this question could be raised for the first time on appeal, it would mean that the failure of the clerk to put his filing indorsement on the indictment would render the whole proceeding void, and the defendant would be entitled, after conviction, to his discharge on habeas corpus. And, in such a case, if he had been acquitted and indicted again for the same offense, he could not plead autre fois acquit in defense of the second indictment. The court will not be driven to such a conclusion unless there be no reasonable escape therefrom.
Appellant contends that the judgment is erroneous because the evidence failed to show whether the crime of *Page 733 which he was indicted and convicted was committed before or after the indictment was returned. This question is also raised for the first time in this court. Appellant was indicted at the April, 1928, term of the circuit court of Leake county, and tried and convicted at the following November term of the court. The indictment charged the offense to have been committed "on the ____ day of April, 1928." The evidence tended to show that the crime was committed some time during that month, but whether before or after the indictment is not made certain. Appellant made no objection on the ground of the insufficiency of the evidence in that respect, nor was any instruction requested by appellant, directing the jury to acquit him unless the evidence showed that the crime was committed before the indictment was returned.
Section 4936, Code of 1906, section 3417, Hemingway's 1927 Code, provides, among other things, that no judgment in a criminal case shall be reversed "because of any error or omission in the case in the court below, except where the errors or omissions are jurisdictional in their character, unless the record show that the errors complained of were made ground of special exception in that court." The error complained of is not jurisdictional in character. The court had jurisdiction of the subject-matter and of appellant. The evidence was ample to show that appellant was guilty of the crime for which he was indicted and being tried. The only fault in the evidence was that it failed to show whether the crime was committed before or after the indictment was found. On proper objection by appellant in the trial court, the state would have been given an opportunity of showing that fact.
This statute was held to be constitutional in Ex parte Phillips, 57 Miss. 357; Spivey v. State, 58 Miss. 743; and Fleming v. State, 60 Miss. 434. And in several cases, this court has construed the statute to mean that errors *Page 734 predicated upon the admission and rejection of evidence cannot be availed of in a criminal case for the first time in the supreme court. Matthis v. State, 80 Miss. 491, 32 So. 6; Kaufman v. Foster, 89 Miss. 388, 42 So. 667; Hardeman v. State (Miss.), 16 So. 876 (not officially reported); Alexander v. State (Miss.), 22 So. 871 (not officially reported).
Affirmed.