Opinion
No. 30886.
February 5, 1934.
1. JURY.
Where all except about twelve of special venire were found disqualified on voir dire, court properly disallowed second special venire (Code 1930, section 2061).
2. JURY.
Second special venire is allowed only when first has been quashed for reasons which so completely dislodge first special venire that it never became special venire (Code 1930, section 2061).
3. WITNESSES.
Where witness, on cross-examination, denied she had talked to many people about homicide, impeaching proof that witness had stated she did not see homicide held properly excluded because no adequate predicate was laid.
4. WITNESSES.
To impeach witness by previous statements or conversations, he must by predicate be apprised of time, place, and persons present, and particular impeaching matter must be distinctly presented to his attention.
APPEAL from Circuit Court of Jasper County.
J.M. Travis, of Meridian, for appellant.
The statutory law of this state gives a party charged with murder the right to demand a special venire facias for a jury of not less than forty men for the trial of his case, and it is compulsory upon the trial court to grant unto accused in a capital case the special venire facias.
In the trial of a capital case each side, the state and the defendant, has a right to peremptorily challenge twelve without any cause and it was utterly impossible to secure a jury out of those who qualified as veniremen, and it was necessary to resort to jurors on the regular panel to get a jury in the case.
It is true that a jury was received in this case without exhausting the two regular panels, but most of the jury accepted in this case was because a legal excuse could not be found why they were not qualified to sit on the jury. The appellant insists that the trial court below erred in refusing to allow another special venire facias.
Willie Mae McCormick, wife of the deceased, Leonard McCormick, was the only eyewitness to the homicide introduced by the state. She testified that she was present when Richard Harrison, appellant, shot and killed the deceased.
The defendant called L.B. Ellis as a witness, but the court refused to let this testimony go to the jury and the court stated, "sustained," for the reason that the purpose of this testimony is for impeachment as stated by counsel for defendant and there was no predicate laid for the impeachment of the witness, the wife of the deceased man.
The appellant submits that sufficient predicate was laid in this case. W.D. Conn, Jr., Assistant Attorney-General, for the State.
The statute relating to the drawing of special venires in capital cases is governed by section 2061 of the Mississippi Code of 1930. From this section it will be noted that the number of names to be drawn is largely in the discretion of the judge. No charge is made by appellant that he did not secure a fair and impartial trial and that is all he is entitled to.
Harris v. State, 155 Miss. 794, 125 So. 253.
It is not permissible to contradict a witness on an immaterial or collateral matter.
Walker v. State, 151 Miss. 862, 119 So. 796; Cofer v. State, 158 Miss. 493, 137 So. 511; Barnes v. State, 152 Miss. 250, 119 So. 172; Witt v. State, 159 Miss. 478, 132 So. 338.
Argued orally by J.M. Travis, for appellant, and by W.D. Conn, Jr., for the State.
A special venire was drawn and summoned, but upon the voir dire all except about twelve of the venire were found disqualified. Appellant thereupon demanded another special venire, and the refusal thereof by the court is assigned as error. The assignment is not well taken, because the statute, section 2061, Code 1930, expressly provides that, when a special venire is exhausted without a jury being impaneled, the court shall proceed to make up the jury from the regular panel and from tales jurors. A second special venire is allowable only when the first has been quashed for reasons which so completely dislodge the said first special venire that it has never been or become a special venire at all.
The wife of the deceased was the only eyewitness to the homicide, other than the parties, and it was chiefly upon her testimony that the conviction was obtained. On her cross-examination she was asked whether she had "talked to a good many people about this thing," to which she replied that she had not. The defendant offered a witness to prove that the wife had stated to this witness shortly after the homicide that she did not see it. This impeaching proof was properly refused, because no adequate predicate was laid for it. In order to impeach a witness by his alleged previous statements or conversations, he must, by the predicate, be apprised of the time, place, and persons present, and the particular matter as to which it is designed to impeach the witness must be distinctly presented to his or her attention. Bonelli v. Bowen, 70 Miss. 142, 149, 11 So. 791.
We have carefully examined all the other assignments and find that none of them presents reversible error in this case.
Affirmed.