McVey v. State

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction for murder, followed by a sentence to life imprisonment in the state penitentiary. When the case was called for trial a special venire was demanded, whereupon the court directed that fifty names be drawn from the jury box, but on ascertaining that two of the five compartments thereof contained less than ten names each, directed the clerk, over the objection of the defendant, to issue an open venire facias commanding the sheriff to summon fifty jurors. The defendant, who was'then present in the custody of the sheriff, was thereupon returnéd to jail. An hour or two later, in the absence of the defendant, who was then in jail, his counsel again called the attention of the trial judge to the matter, and requested that the special venire be drawn from the jury box, which was shown to contain in the compartment for district No. 1, nineteen names, for district No. 2, seven names, for district No. 3, two names, district No. 4, twenty-three names, and district No. 5, seventy-four names, which request was again denied. Afterwards, on the return of the venire and before the jury was impaneled, defendant’s counsel, he himself being absent in jail, moved the court to quash the venire on the ground that it should have been drawn from the .jury box as provided by statute, which motion the court overruled. The ruling of the court upon each of these motions was objected to, and two questions are presented to us thereby: First, was the defendant tried by a legal jury? Second, should the judgment of the court below be reversed because of the absence of the defendant from the courtroom while two of the rulings of the court upon the objections raised by his counsel to the venire were made? The first question must be answered in the affirmative, and the second in the negative.

Conceding for the sake of the argument that the jury box was not exhausted within the meaning of the statute, and that the jury should have been drawn therefrom, nevertheless the court below committed no reversible error in declining so to do and directing that the jury be selected in the manner provided by section 2715, Code of 1906 (section 2208, Hemingway’s Code), “in the event that there should be no such box, or the same should be mislaid, or the names therein have been exhausted,” for the reason that “all the provisions of law in relation to the listing, drawing, summoning and impaneling juries are directory merely.” Section 2718, Code of 1906 (section 2211, Hemingway’s Code).

• The second question presented to us for decision, stated in another form, is simply this: Was the defendant present when the method by which the jurors were selected was determined? That he was then present admits of no sort of doubt, for the method determined on in his presence was thereafter pursued; the rulings made in his absence relative thereto, upon objections made by his counsel identical with the one made and ruled on in his presence, having made no change whatever therein.

We find no reversible error in the other matters complained of.

Affirmed„

Cook and Sykes, JJ., dissenting.