Volume 133 — Mississippi Reports

Hon. R. S. Hall, Judge. Action by Dr. C. S. Waters against the American National Insurance Company. From a judgment for plaintiff, defendant appeals. The solemn contract entered into by the parties to this suit, provided that “written notice of injury or of sickness on which claim may be based must be given to the company within twenty days after the date of the accident causing such injury, or within ten days after the commencement of disability from such sickness.

Hon. T. L. Lamb, Judge. Dewey Long was convicted of assault and battery with intent to kill and murder, and he appeals. I. The jury which was drawn and constituted the grand jury by whom this defendant ivas indicted was drawn in part by the principal prosecuting party, the sheriff, W. R. Crismond. We are mindful that under section 2211, Hemingway’s Code, the provisions of law relating to listing, drawing, summoning, and empannel-ing juries are directory.

Hon. S. F. Davis, Judge. Action by J. B. Daniels against Robert Harvey. From a judgment for plaintiff, defendant appeals. Daniels sold Harvey, verbally, a house and lot in Bel-zoni for the sum of three hundred dollars. Ten dollars ($10) was paid in cash and the balance of three hundred dollars, was to be paid monthly until the whole sum was paid.

Hon. Y. A. Griffith, Chancellor. Suit by the W. C. Griffin Land Company against F. H. Jordan. Decree for complainant, and defendant appeals. A certified copy of the tract book and a certified copy of the patent were introduced in evidence and were in hopeless conflict as to the Southeast quarted of section 7, township 2, north, range 13, West.

Hon. E. N. Thomas, Chancellor. Suit by the Greenville Savings Bank & Trust Company against the Marine Bank & Trust Company. From a decree for complainant, defendant appeals. The negotiation of the warehouse receipts in this case was valid and binding. I. A Becorded M-ortgage cannot Destroy in Effect the Warehouse Beceipts Act.

Hojí. K. W. Cutrer, Chancellor. Shit by the Mississippi Live Stock Sanitary Board against Walter Williams and others. From a judgment of abatement, complainant appeals. Upon the hearing, at a date agreed upon by the attorneys, appellees filed a plea in abatement setting up as grounds therefor: 1st. That there ivas a plain and adequate remedy at Law. 2nd.

Hon. I). M. Miller, Judge. Suit by J. S. Penn against the Columbian Mutual Life Assurance Society. From a judgment for plaintiff, defendant- appeals.

<p>Appeal from circuit court of Tippah county.</p> <p>Hon. A. D. Patterson, Special Judge.</p> <p>Walter Stark was convicted of an attempt to unlawfully manufacture intoxicating liquors, and he appeals.</p> <p>The record discloses that the regular panel having been exhausted during the trial of appellant, three talesmen were called from the bystanders to serve as jurors in the case. These three talesmen were not sworn as jurors until afted'all the testimony for the state had been introduced, and after the jury had one time retired out of the presence of the court, then over the objection of the defendant in the lower court, the court directed the oath of jurors to be administered to the three.</p> <p>The court overruled defendant’s objection on the authority of Boroum v. State, 105 Miss. 887.</p> <p>A-close study of the Boroum case ivill reveal the fact that it is an authority in favor of the appellant in this case, and against the appellee. Therefore we desire to call the court’s attention to this case, and request a close study of the opinion rendered on suggestion of error. This latter opinion in that case most strongly inferred, if it did not directly hold, that the failure to administer the oath to jurors until after the trial had been partially completed, was fatal error if taken advantage of, and objected to before same is cured by verdict as provided in section 1413 of the Code of 1906, section 1168 of Hemingway’s Code.</p> <p>On passing on the suggestion of error the court sustained its former opinion solely on the ground that defendant had not taken advantage of the error at the proper time, and same was cured by the statute heretofore referred to.</p> <p>For the statute pertaining to the oath of petit jurors, see section 2713 of the Code of 1906, section 2206 of Hemingway’s Code.</p> <p>It will be noted from the language of this statute that they shall be SAVorn to try all issues which “may be submitted to them.” It is clearly the intention of that statute that the oath shall he administered before the issue is submitted and not after. It is not to try all issues which have been submitted to them, but which “may be submitted to them.” The Avord “may” as there used clearly refers to the future. All the issue on the part of the state Avere submitted to the jury in this case before a part of their number Avere sliOAvn.</p> <p>Our court has frequently held that a jury Avithin the meaning of the constitution must be composed of twelve men. Byrd y. State, 1 Hoav. 163. They have also held that a verdict by six men, or eleven men, is absolutely void. Scott v. State, 70 Miss. 247, and Jones v. State, 27 So. 382. Therefore Ave see that the fact that nine of the jurors who tried this case were duly qualified makes no difference, if one Avas not qualified it is the same as if none were qualified. These twelve men, so selected, must be impaneled and SAVorn to try the case, .and then and then alone do they become a jury Avithin the meaning of the constitution. And I find that our oavii court has recently so held, in Miller v. State, 122 Miss. 39. The court quoted with approval from Howard v. State, 80 Tex. Or. K. 588, 192 S. W. 770, L. K. A. 1917 D, 391.</p> <p>The recent decision of this court in the case of Miller V. State, 122 Miss. 19, is decisive. It is true that in that case the defendant was charged with a capital offense, but the principle is the same. The defendant in this case Avas charged with a felony, and was entitled to have his case submitted to a legal jury. We can apply with equal force in this case the statement of the court in that case, as found on page 38 of the report: “The case had already been tried, so far as the evidence Avas concerned before the jury Avas sworn to consider the proof and try the issue joined. When the jury heard the testimony they were but little more than mere spectators, listening to the witnesses, since they were not under oath to try the issue joined; they did not receive the testimony while they were bound by the sanctity of the oath. ...”</p> <p>Counsel for appellant relies upon the case of Miller v. State, 122 Miss. 19, for a reversal, because of the failure to swear three of the jurors, as aforesaid. An examination of this case, however, rvill disclose that this is a construction of a special statute with reference to capital cases, the same being section 1483 of - the Code of 1906. Whereas the section involved in the present case is 2713 Code of 1906, section 2206 of Hemingway’s Code, which deals with petit jurors.</p> <p>We confidently maintain that cases other than capital cases, are controlled by the rule laid down in the case of Boroum v. State, 105 Miss. 887. In this case the court in substance held: “That where in impaneling a'jury seven of the jurors were not sworn until after the jury had retired to consider their verdict,' when they were returned to the court room and were properly sworn, this defect was cured and could not be taken advantage of for the first time on appeal since under the Code of 1906, section 1413, so providing, no judgment shall be reversed after the same is rendered, for any defect which might have been taken advantage of before verdict, and which shall not have been so urged.”</p> <p>Now we submit that the same rule would apply in a capital case, except for the fact that there is a special statute, to-wit: Section 1483, Code of 1906, which is mandatory and absolutely requires that this special oath be administered in capital cases.</p> <p>We malee this distinction between capital cases and others: In a capital case it matters not whether a record shows that the cause of the defendant was prejudiced by failure to swear the jurors, because there is a statute which says that in capital.cases they should be sworn in a certain way, whereas there is no such statute in other than capital cases, and in the absence of such a. statute, then it must be shown that a failure to swear jurors was prejudicial to the rights of the defendant.</p> <p>We submit that this sounds reasonable, just, and in keeping Avith the authorities herein cited. And if this be true then of course it is folly to say that the defendant’s cause was prejudiced by this oversight on the part of the judge to swear these three jurors at the time they were accepted on the jury..</p>

Hon. T. L. Lamb, circuit judge. Action by Carrie Golden against the American National Insurance Company of Galveston, Tex. From a judgment for plaintiff, defendant appeals.

Hon. D. M. Russell, Chancellor. Suit by Mrs. M. N. Roberts Rutherford and others against Eastman, Gardiner & Co-, and others. From a decree for defendants, plaintiffs appeal. It is our contention that the pretended sale by the trustee herein was void and no title passed by the pretended deed of conveyance to the defendants herein.

In Case No. 23,309: Appeal from'circuit court of Pearl River county. Hon. G-. Wood Magee, Special Judge'. Held: that the act of the 16th of March appropriated the swamp lands. embraced in the district therein described, and which includes the county of Attala, to the respective counties in Avhich the lands are situated; that thereby the counties acquired a vested right which could not be withdrawn, without their consent; and that, although…

Hon. G. E. Williams, Chancellor. Bill by J. W. Richardson and others against P. B. Woolard, chancery clerk. From a decree dissolving an injunction and dismissing the bill, complainants appeal. The question to be determined from the record is whether or not the loose-leaf book described in the original bill is the kind of book required by the law to be used for recording deeds of trust and other such instruments.

Hon. W. A. Alcorn, Jr., Judge. Suit by Anna B. Dodds. against W. M. Cavett and others. Judgment for defendants, and plaintiff appeals. There are only one or two questions involved in this appeal: First: Was it error for the court to refuse plaintiff the right to amend her petition so as to cover the additional cotton houses which are shown by the proof to have contained part of the lumber sued for?

' Hon. S. F. Davis, Judge. Columbus Story, alias bum Story, ivas convicted of rape, and he appeals. Held: that this being the unsworn statement of a fact by counsel which had it been offered in evidence would have been incompetent, and being of a character well calculated to influence the jury against the accused, it presents a good ground for the reversal of the judgment and the granting of a new trial.

Hon. A. J. McIntyre, Chancellor. Bill by Mrs. Alma Burns against J. Sut Burns. Decree for plaintiff, and defendant appeals. The original bill in setting out the residence of the defendant stated that he was a resident citizen of Prentiss county, but is at present temporarily domiciled at Clarks-dale, Coahoma county, Mississippi.

I-Ion. J. Q. Langston, Judge. Action by B. F. Wheat against Pearl River county. Judgment for plaintiff, and defendant appeals. We respectfully submit to the court that there is no testimony in this record on which a verdict of the jury in favor of appellee could have been legally rendered. There is absolutely no testimony even tending to show that the ox died from being dipped.

Hon. A. J. McIntyre, Chancellor. - Proceedings by the board of supervisors of Pontotoc county to validate a bond issue, wherein W. J. King and another filed objections as taxpayers. From a decree of validation, objectors appeal. The whole scheme of the law Avith reference to consolidated school districts is unconstitutional in that it deprives the citizen of his property AAdthout due process of law.

Hon. R. W. Cutkek, Chancellor. Action between C. E. Robinson and Theo. McKnight. From the judgment rendered, the former appeals. On motion to strike transcript of evidence from record. The transcript herein was received by Truly and Truly on July 11, 1922, and approved as correct and mailed to appellee on the 11th day of July, 1922. R. P. 111. .

Hon. T. C. Kimbrough, Special Judge. Mandamus by L. E. Oldham against the Lafayette county board of drainage commissioners. Held: as applicable to boards of supervisors, that . . the statute . . . is at once the source and limitation of the board to impose taxes.” Likewise, it was held by this court in Adams v. First National Banh of Greenwood, 103 Miss. 744, 60 So. 770: “In the case of Jefferson v. Grafton, 74 Miss. 435, 21 So. 247, 36 L. R. A. 798, 60 Am.

- Hon. W. A: Alcorn, Jr., Judge. Suit by the Currie-McGraw Company against J. W. Bishop. Judgment for plaintiff, and defendant appeals. The contract sued on was a contract of suretyship within the contemplation of section 3731, Code of 1906, section 2907, Hemingway’s, and the defendant, Bishop, was discharged by the failure of the plaintiff company to sue the principal debtor, Turner, after written notice so to do had been given it.

Hon. Greek L. Bice, Judge. Suit by the Bank of Courtland against Long Creek Drainage District No. 3 of Panola county. Prom an order sustaining demurrer to declaration, and granting plaintiff an appeal to the supreme court, the plaintiff appeals. No briefs on question decided.

Hon. W. A. Alcorn, Jr., Judge. Quo warranto by the state of Mississippi, on the-relation of E. L. Fontaine, against E. L. Anderson. Judgment of dismissal, and relator appeals. The sole question in this case is this: A quo warranto has been brought against E. L. Anderson, alleging that he usurps the office of election commissioner of Coahoma county, Mississippi. The petition was brought in the second court district of Coahoma county/Mississippi.

IIon. J. Q. Langston, Judge. Action by Estus Bazor against the J. J. Newman Lumber Company. Prom a judgment sustaining demurrers to declarations and dismissing the cause, plaintiff appeals.

’Appeal from circuit court of Forrest county. Hon. R. S. Hall, Judge. Appeal from chancery court of Forrest county. HoN. Bee KiNG, Chancellor. • Suits by the Firm Lumber Company, by H. 'H. McComb, by Mrs. L. S. Platt, by Mrs. B. O. Mclnnis, by O. R. Burkett and another, by H..M. Satcher and another, and by W. H. Jackson and others against the city of Hat-tiesburg. From a judgment for defendant, plaintiffs appeal.

Hon. Bee King, Chancellor. Bill by the city of Hattiesburg against Mrs. M. E. Stevens. Judgment for plaintiff, and defendant appeals. Held: ‘ ‘ That the work contemplated involves the destruction of the original structure except the foundation. 4. That the contemplated improvement is a new and original structure upon the old foundation. 5.