Perry County MsArchives Court.....Cody, Mr 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Cody v. The State

Pages 27-31

It will be presumed, that the court, entrusted with the duty of empannelling 
grand jurors, selected good and lawful men. The party may destroy this 
presumption by challenge and proof before the trial; but the question cannot 
be afterwards raised in another court.

The record must show that the grand jurors were sworn.

If the record show that any of the grand jury was sworn as foreman, it will be 
evidence of his appointment as such.

It was held good ground for a new trial that one of the jurors, after he was 
summoned and before trial, declared that should he be of the jury, he did not 
think he could clear the accused, but would be bound to find him guilty.

The indictment will be bad, unless the name of the prosecutor is endorsed 
thereon.

Error to the circuit court of Perry County.

Hays and M'Clung, for plaintiff in error.

Collins, Attorney General, for the state, cited Chitty's Crim. Law, 333, 4, 5; 
Woodsides v. The State, 2 Howard's Rep. 655; Chitty's Crim. Law, 266; Walker's 
Rep. 392.

Mr. Justice Trotter delivered the opinion of the court.

This case stands upon a writ of error to the circuit court for the county of 
Perry. The record states that at the October term of that court, held in the 
year 1837, a bill of indictment was found by the grand jury, charging the 
plaintiff in error with the murder of one Henry Rodgers. That at the April 
term following, a special venire facias, for 20 jurors to try the prisoner, 
was awarded. That a jury at the same time was empannelled and sworn to try the 
issue made up on the plea of not guilty, which had been filed by Cody, at the 
preceding term, and that said jury found a verdict of guilty against him at 
the same term. That the court thereupon proceeded and pronounced final 
judgment of death against him with the usual order of execution.

The first error complained of in the proceedings of the court below in this 
cause is, that the grand jury who found the indictment were not good and 
lawful men, of the county of Perry. The grand jurors in each county of the 
State part directed to be selected by lot from the whole number of jurors 
summoned and attending the court under the venire for the term. The statute 
points out the method by which the jurors who are to compose the venire shall 
be selected, and prescribes their qualifications. They are to be selected by 
the sheriff and clerk under the direction and control of the court, from the 
returns of the assessor and collector of taxes, and are to be freeholders or 
householders of the county in which they are required to serve. It is to be 
presumed that the court entrusted with the selection of the venire has done 
its duty by placing none upon it except such as are good and lawful men of the 
county according to the directions of the act. It is competent for any party, 
whose rights are to be affected by the action of the jury, to destroy this 
presumption by challenge and proof tendered at the time. If he is silent, 
however, he cannot afterwards raise the objection in another court. All 
exceptions to the jurors must be taken at the time of the trial. To sustain 
this position the court might refer to many adjudications of the highest 
courts in other states. 1 Chitty's Crim. Law, 333.

They do not deem this assignment of error sufficient to affect the judgment.

It is insisted in the second place, that there is no evidence upon the record 
that the grand jury were ever sworn by the court. The record, without any 
notice of the original venire, proceeds to state that fifteen persons, naming 
them, were drawn as a grand jury, and that A. E. Denham (one of the number) 
was sworn as foreman of the same. There is no statement that A. E. Denham was 
appointed foreman by the court, nor is there any statement that the remainder 
of the jurors took the oath required by law of grand jurors.

This we deem a fatal objection to the indictment. The Constitution of this 
country provides that no man shall be held to answer for any capital or 
infamous offense until he shall have been first charged with the same by a 
grand jury of the proper county. Our laws have, with great precision 
prescribed the method by which this body, entrusted with such high powers, 
over liberty and life of the citizen shall be organised. They are required to 
be selected by lot, under the direction of the court, from the whole number of 
jurors summoned and in attendance by virtue of the venire facias, for the 
term. When thus selected they shall take an oath, the form of which is 
particularly prescribed by law. In order to give system and certainty to their 
proceedings, but court is directed to appoint one of their number to act as 
their foreman. This appointment constitutes him the organ through which their 
inquisitions and proceedings are reported to the court, and particular duties 
are devolved upon him distinct from those of the other members of the jury. He 
must report all bills which may be submitted to the jury and state, over his 
name to be endorsed on the same as foreman, whether they are true or not. His 
functions are, therefore, highly important, and it should clearly appear from 
the record that he has been designated by the court and sworn to act in this 
capacity. It is his return as foreman, which places the bill of indictment in 
possession of the court and apprises it that the grand jury have found it to 
be true. It is not been necessary by us to decide, whether, if the record or 
caption of the indictment should show, that the grand jury in a body returned 
the bill of indictment into court with their finding endorsed upon it or 
specially entered of record it would not be sufficient. In the absence of such 
a statement it must appear of record that the foreman returned the bill, and 
of course that he was authorised to act as such. In this case there is no 
evidence of the appointment of A. E. Denham as foreman, except the statement 
that he was sworn as such. And it is an inference which is deemed consistent 
with the record that he was appointed. His appointment is included in the fact 
of his taking the oath. This was the determination of this court in the case 
of Woodsides v. The State, decided at the January term in 1837, and we do not 
feel inclined to disturb it. But there is no statement that the other members 
of the grand jury were sworn, and we do not feel authorised to infer it from 
any thing on the record. The fact that A. E. Denham was sworn as foreman of 
the grand jury, cannot by any rule of construction or inference known to us, 
include the other and distinct fact that the residue of the panel took an oath 
also. The recital of this fact in the bill of indictment cannot supply the 
omission of it in the record. The record may aid the indictment, but not e 
converso. For the authority of the jury to find the indictment must be 
contained in the record, in the bill becomes no part of the record until it is 
acted upon and returned into court in the manner prescribed by law.

We will proceed to notice two of the other assignments of error relied on by 
the plaintiff. One is that the indictment is defective because there has not 
then endorsed upon it the name of the prosecutor. The 69th sect. of the 
act "for the punishment of crimes and misdemeanors," Rev. Code, 309, makes it 
the duty of the attorney general, or district attorney, to mark upon all bills 
of indictment the name of the prosecutor or prosecutors. This statute was 
designed to protect the state against the payment of costs for frivolous and 
malicious prosecutions, by affording certain record evidence of the person 
will had perverted the criminal jurisprudence of the country from its true 
objects and sought to make it a means to gratify his malice and revenge. It 
was manifestly designed to operate as auxiliary to a previous provision 
contained in the 67th sect. of the same act, by which it is provided that if 
the state fail in the prosecution of any inferior offence, the court may, if 
the prosecution appear to be frivolous or malicious, order the prosecutor to 
pay costs, &c. This act had another most important and salutary object in 
view, and that was to enable a party against whom a malicious and vexatious 
prosecution is instituted, to ascertain, with certainty, the hand from whence 
the injury to his reputation has proceeded. 2 Bibb's Rep. 210; 1 Ibid. 355. 
But, these objects may be defeated by a neglect on the part of the officers of 
the State to comply with the directions of the statute. We are of opinion, 
therefore, that this indictment is bad for that reason.

They are clearly of opinion that, on the ground which it was proposed to 
examine by the court, the circuit court ought to have awarded a new trial to 
the defendant. The juror R. J. Patrick was not competent to try the prisoner. 
This is made manifest from the affidavit of William Snow, which is part of the 
record. Jurors should be, in the language of the law, omni exceptione majores. 
That was not the condition of	the juror in this instance. He had formed an 
expressed an opinion against the prisoner. It will not do to say in answer to 
this objection that his opinion may have been a mere hypothetical one, founded 
on mere loose rumor. When examined on his voir dire, he should have stated the 
fact, and the court would have been enabled to determine upon the character of 
it, and whether his mind was laboring under any undue bias, unfavorable to and 
impartial examination and decision of the case of the prisoner. But the record 
shows that he denied, when asked by the court, that he had formed or expressed 
an opinion of the prisoner's case; yet, we are furnished by the same record 
with proof of the fact that he had expressed an impression highly prejudicial 
to Cody. He declared, and that too after he was summoned by the officer to 
attend the court as a juror, that if he should be upon the jury, "he did not 
think he could clear him, but should be bound to find him guilty." A due 
regard to the sanctity of the trial by jury, and the constitutional right 
which has been guaranteed to every man to a trial, in all cases of the kind 
before the court, by and impartial jury of this country, demanded, as we 
conceive, a new trial. M'Kinley v. Smith, Harding's Rep. 167.

The judgment of the court below must, therefore, be reversed and the cause 
remanded, and the new trial granted by the circuit court of Perry county.

Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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