Kyzar v. State

W. H. Cook, J., delivered the opinion of the court. Appellant, Tom Kyzar, was indicted by the grand jury of Lincoln county for the manufacture of intoxicating liquors, and was convicted and sentenced to imprisonment in the penitentiary for one year, from which verdict and sentence he prosecutes this appeal. Appellant filed a motion to quash the indictment against him, .alleging as the grounds of the motion that the grand jury had no authority or power to return the indictment; that the grand jury had been finally discharged by the court before the indictment was found; that the entire grand jury was not summoned to reassemble on the 15th day of Septeinber, 1920, the date the indictment was returned;' that three of the grand jurors were not resum-moned and did not meet with the body on the 15th day of September, 1920; that there was no evidence before the grand jury upon which the indictment was based; and that no witnesses appeared before them on the date the indictment was found and returned. There was evidence offered on this motion, and it appears that after the grand jury was discharged, and during the term of court, the circuit judge issued an order reconvening the jury on the 15th day of September, 1920, [85] and directing the issuance of process for witnesses to appear before them. The grand jury as originally impaneled consisted of twenty members, but three of them were not notified of the order to reassemble, and on the date fixed by the order of the court only seventeen of them, including the foreman, appeared. It further appears that one of the three who were not resummoned had been excused from service by the court on account of illness, while the other two were not found in the county. The indictment against appellant as returned had indorsed thereon the names of the two witnesses, and appellant offered to introduce evidence to show that no witnesses appeared before the grand jury on the 15th day of September,'1920, the date they reassembled and returned the indictment against him. Upon objection this evidence was excluded and the motion to quash was overruled. Thereupon appellant filed a plea in abatement setting up the same grounds as were contained in the motion to quash, and the same evidence that had been offered on the motion was offered on the plea in abatement. The court also overruled the plea in abatement, the ruling of the court being in the following language: “The court, having heard the evidence on the motion to quash, and also the same evidence on the plea in abatement, and considered the evidence and the answer of the state’s attorney, as filed herein, is of the opinion that there is no legal ground to sustain the motion, and that there is no matter to be submitted to a jury to decide with reference to the plea in abatement, and is of opinion that the motion should be overruled, and is also of the opinion tliat the plea in abatement should not be sustained, and the court now so rules.” The action of the court both on the motion to quash and the plea in abatement was correct. Irrespective of any statutory authority, the court has the inherent power to recall the grand jury at any time during the term, and authority for this action by the court is also found in section 2706, Code of 1906 (Hemingway’s Code, section 2199), [86] giving tbe court the power to adjourn the grand jury to a subsequent day of the term, and section 2718, Code of 1906 (Hemingway’s Code, Section 2211), declaring that the jury laws are merely directory. The right of the court to reassemble the grand jury at any time during the term is not open to question in this state, as this question is settled in the, case of Hayes v. State, 93 Miss. 670, 47 So. 522, 17 Ann. Gas. 653, and since the decision of that case it has become a common practice for the judge to recall the grand jury when, in his judgment, the public interest will be conserved by so doing. The power to reassemble the grand jury is of more importance now in the administration of the criminal laws than formerly on account of the greater length of the terms of court in many of the counties of the state, and the exercise of this power by the judges whenever the public exigency demands is to be commended. In the instant case the legality of the reassembled grand jury was not affected by the fact that only seventeen of them received the notice to reconvene. Section 2700 of the Code of 1906 (Hemingway’s Code, section 2193) provides that the number of grand jurors shall not be less than fifteen nor more than twenty in the discretion of the court. The court has full power to excuse any member of a grand jury; the only limitation upon this power being that a grand jury shall never consist of less than fifteen members. It requires as many as fifteen members to constitute a grand jury, and so long as that number is present a defendant who is indicted by the body cannot complain of the absence of any particular member. The testimony which appellant offered to show that no witness appeared before the grand jury on the date the indictment was returned was properly excluded. The court cannot inquire into the character or sufficiency of the,evidence' before the grand jury upon which an indictment was found, but, if the evidence offered in this case had been admissible, it would not have warranted a finding that there was no evidence before the grand jury upon [87] which to predicate their findings. Smith v. State, 61 Miss. 754; Hammond v. State, 74 Miss. 214, 21 So. 149. In assignments fourteen and fifteen appellant contends that the laws of the State of Mississippi making the manufacture of intoxicating liquors a crime have been superseded or suspended by the adoption of- the Eighteenth Amendment to the Constitution of the United States and the enactment of the national prohibition amendment thereunder, and that by reason of the fact that Congress, acting in pursuance of the power granted to it under the Constitution, has enacted legislation in regard to the manufacture, sale, transportation, importation, and exportation of intoxicating liquors, the subject is entirely removed from state jurisdiction. The decision of this question is controlled by the opinion in the case of Meriwether v. State, No. 21431, 86 So. 411, this day decided by this court. We do not think there is merit in any of the other assignments, and therefore this cause is affirmed. Affirmed.