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West Feliciana Railroad Company v. Stockett. It has been repeatedly decided, under the statute for the limitation of actions, that the nine months' exemption from suit in favor of administrators, is to be excluded in the estimation of the bar. It is contended that the same rule must be applied under this statute, and that as administration was taken out on the 13th of Nov. 1843, the defendant was not liable to be sued until the 13th of Aug. 1814. This argument is met by the position, that, as the act of 1844 declares that suit shall be brought within four years after the qualification of the administrator, the statute begins to run from that time, and admits of no interruption. Express provision was made by the last section of the act of 1844, that it should not stop the running of any other act. The cause of action was therefore still subject to the limitation of six years, the operation of which was of course suspended from the grants of administration on the 13th of Nov. 1843, until the 13th of Aug. 1844. During this state of suspension, the act of 1844 was passed, and it is evident from its terms, that it did not operate as to this claim, or if it did, it did not commence running until the 13th of August, when the nine months expired.

Administration was granted before the passage of the act, and it was certainly not the intention of the legislature to give it a retrospective effect. If so, many claims may have been barred the moment the statute was passed. The legislature may pass an act of limitations which shall apply to existing causes of action, but reasonable time should be allowed within which suits may be brought. But if the act is silent as to any such intention, it cannot be construed to apply to such cases, when such construction would cut off all remedy. If this statute commenced to run in this case from the grant of administration; of course it did so as to all other administrations granted before its passage. Our conclusion is that the act was prospective; that it was only intended to declare that, as to administrators thereafter to be appointed, the bar should commence from the qualification of the administrator. But suppose it began to run from its date, as it declares, then, like all other statutes of limitations, it took effect only in cases when a cause of action had accrued. There was no other criterion for its commencement, as it did

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Boles v. The State of Mississippi.

not begin to run from a previous grant of administration. When
it was passed, there was no cause of action in this case; the
nine months had not expired; and neither the previous law, nor
the exception, was repealed, and suit was brought within four
years after the cause of action had accrued. Of course it was
not barred. It is consequently immaterial whether this statute
begins to run from the grant of administration, and runs on; or
whether it admits of the saving of nine months.
Judgment reversed, and cause remanded.

SMITH, J., having been of counsel, gave no opinion.

WILLIAM H. BOLES vs. THE STATE OF MISSISSIPPI.

A prisoner indicted for murder has the right to select his jury out of the special venire summoned in his case, so far as it is practicable for him to do so, by exercising his right of challenge for cause, and of peremptory challenge. Where, therefore, a juror, in the call of the venire, state, on his voir dire that he has not formed or expressed an opinion, and had no conscientious scruples as to the punishment of death for murder, but that his wife was ill, and a physician had been sent for to see her, and he desired on that account to be excused; but the counsel for the prisoner objected, and the district attorney also refused his assent: it was held, to be an unjustifiable exercise of power for the court, of its own motion, to discharge the juror; for which the prisoner, after a verdict of conviction, would be entitled to a new trial.

After the jury had retired in the case of a prisoner indicted for murder, they were taken from the jury room by the consent of the prisoner to a neighboring hotel, where rooms were provided for them, and where they dined at the public table, an officer sitting between them and the other guests; and while they were at the hotel a barber was admitted to their room to shave some of them, and was there more than an hour, and for a few minutes without the presence of the officer having them in charge; there was no proof of tampering with the jury, either by the guests at the table or the barber; on the contrary, the officer stated that he heard no one speak to them on the subject of the trial, though the barber might have whispered to them, or delivered written communications on the subject: Held, that the prisoner

Boles v. The State of Mississippi.

was entitled to a new trial; it was not necessary for the prisoner to show that the verdict was vicious ; it was enough to show that the common law rule had been violated, which prohibits the jury being spoken to hy any one.

In error from the circuit court of Hinds county; Hon. George Coalter, judge.

William H. Boles was tried and convicted of murder for the second time. See Boles v. State, 9 S. & M. 284. The points excepted to on the last trial will be found in the opinion.

Amos R. Johnston, for prisoner,

1. On the discharge of the juror referred to, cited Hutch. Code, 1007, art. 7, § 1.

2. As to the conduct of the jury, cited Hare v. State, 4 How. 187; Commonwealth v. Robes, 12 Pick. 496; Commonwealth v. McCaul, 1 Virginia Ca. 271; McLain v. State, 10 Yerg. 241; Knight v. Inhabitants of Freeport, 13 Mass. Rep. 218; Perkins v. Knight, 2 New Hamp. 474; People v. Douglass, 4 Cow. 26; Brant v. Fowler, 7 Cow. 562; McCann v. State, 9 S. & M. 465; McQuillen v. State, 8 Ib. 596.

S. A. D. Greaves, on same side,

1. On the first point, cited Rawls v. State, 8 S. & M. 599; State v. Shaw, 3 Iredell, 532.

2. On the other point, in addition to the authorities cited by associate counsel, cited Nelms v. The State, supra.; Const. Miss. Art. 7, § 1.

case.

D. C. Glenn, attorney-general for state. 1. There have been two concurring verdicts of guilty in this

See Boles v. State, 9 S. & M. 284; 5 B. Monroe, 20; 1 S. & M. 412. As to propriety of new trial generally in the case, see Jones v. State, 1 Kelly, 618; Patteson v. Ford, 2 Grattan, 24, 25; Weinzorpflin v. State, 7 Black. 198.

2. As to irregularities of the jury as ground of new trial, see 5 Missouri R. 525; 11 Leigh R. 633, 714; 4 Humph. 27; 10 Yerg. 529; 5 Iredell, 58; 12 Pick. 496; 3 Bibb, 8; 7 S. & M. 45.

Boles v. The State of Mississippi. 3. The excusing and discharge of the special venire by the judge, for proper reasons as shown, is no error. It was an exercise of a discretion which judges are bound to use.

Mr. Chief Justice Sharkey delivered the opinion of the court.

The prisoner was indicted and found guilty of the murder of one Donaho. A motion was made for a new trial for the following reasons: 1st. Because the verdict of the jury is contrary to law and evidence; 2d. That the court improperly released and dismissed two of the jurors who had been summoned under the special venire, against the consent and remonstrance of the prisoner; and 3d. Persons not of the jury were permitted to visit and mingle with the jury, after the cause had been submitted to them and they had retired to consider of their verdict. We shall confine our remarks to the second and third reasons assigned for a new trial.

A bill of exceptions taken during the progress of the trial shows this state of facts: In making up the jury, the name of Jesse D. Granberry was regularly reached on the list of jurors summoned. The juror was examined, (on his voir dire, as we must suppose,) and stated that he had not formed or expressed an opinion as to the guilt or innocence of the accused, and entertained no conscientious scruples as to the punishment of death for murder. The juror stated to the court, that his wife was confined to her bed by sickness, and a physician had been called in to attend her, for which reason he desired to be excused. The counsel for the prisoner objected, and the district attorney also refused his assent, but the court, notwithstanding, excused the juror from serving.

There can be no justification for such an exercise of power. A list of the venire is to be furnished the prisoner two entire days before the trial. This is to give him an opportunity of selecting a jury from the list furnished. A prisoner has not a right to be tried by such a jury as he might select from the body of the county, but he has a right to make his selection from the list furnished him, as far as it is practicable for him to do so by exercising the right of challenge for cause, or his right of per

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Boles v. The State of Mississippi. emptory challenge. When he can no longer challenge, he must take them as they stand upon the list. And when a juror is tendered, the prisoner has a right to him if he is competent; the court cannot set him aside without a cause which goes to his competency as a juror. Granberry was tendered to the prisoner, for so we must understand the bill of exceptions, as he could not have been examined without being tendered.

He was found competent as a juror, and the prisoner was anxious to take him. He had a right to have him, of which he could not be deprived by the court under the circumstances. It is very probable the court might properly set aside a juror who was physically or mentally incompetent, but there was no such emergency in the present case. The juror merely desired to be excused because of the sickness of his wife. He did not even say that his presence at home was necessary.

Doubtless it was not, or he would not have been in attendance. Even if a proper excuse would have justified the discharge of the juror, this was not of that character.

On the next point, the material facts are, that the jury were placed in charge of an officer, who took them to the jury room in the court-house. By agreement of the prisoner they were afterwards taken to the Oak Tree hotel, where they could get refreshment, and there to be kept until they could agree. the hotel they were taken to the public table, where they ate with the boarders, being seated at one end of the table, with the officer between them and the guests. Rooms were provided for them at the hotel, and at their request a barber was sent for to shave some of them, and cut their hair. The barber was in the room more than an hour, and whilst there, another deputy sheriff called the officer having charge of the jury out of the room ; he left it, closing the door behind him, and conversed with the other deputy. He left the jury room for a few minutes, and during his absence left the jury in charge of the other deputy. There was no evidence of tampering either by the barber or by the guests at table ; on the contrary, the officer stated that he heard no one speak to them on the subject of trial, though the barber might have done so by whispering, or

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