
    Richard House v. State of Mississippi.
    [51 South. 274.]
    Criminal Law and Procedure. Unlawful sale of intoxicating liquors.. Jury. Competency. Members of grand jury.
    
    It is reversible error to empanel as a petit juror for the trial of a criminal case a member of the grand jury which found the indictment, defendant being without fault in the premises.
    Hbom the circuit court, first district, Panola county.
    HoN. William A. HoaNE, Judge.
    House, appellant, was indicted and tried for and convicted of' unlawfully selling intoxicating liquors. One of the petit jurors who was empanneled to and did try him was a member of the-grand jury which at a former term of the court preferred the indictment. On his voir dire examination he affirmed that he was not on the grand jury which found the indictment. The fact that he was on the grand jury which preferred the indictment' ■was unknown to the defendant, and his attorneys until after the return of the verdict. Defendant’s motion for a new trial on this ground was overruled, and he appealed to the supreme court..
    
      Shands & Montgomery, for appellant.
    The motion for a new trial should have been sustained because Childress, one of the petit jurors trying the case, was part and parcel of tbe grand jury tbat indicted defendant. 'True be did testify tbat be did not remember tbe case at all, but tbat does not make bim a qualified juror. Tbis point was settled early in tbe bistory of tbis honorable court in tbe case of Beason v. State, 34 Miss. 602, in a case where the issue presented was not whether .the bill returned by the grand jury was a true bill or not, but whether one of tbe grand jurors who found tbe indictment in tbat case was qualified as a grand juror. Tbe reasoning of Justice HaNDY in tbat case is unanswerable.
    Tbe trial court erroneously held tbat Code 1906, § 2685, cured tbe error, but we submit tbat tbe statute has no> application. Jeffries v. State, 74 Muss. 675; Shepprie v. State, 79 Miss. 740.
    
      George Butler, assistant attorney-general, for appellee.
    It is said tbat tbe verdict should bave been set aside because Childress, a member of tbe jury was a member of tbe grand jury wbicb returned tbe indictment, and tbat defendant and bis •counsel did not know of tbis fact at tbe time be was accepted •as a juror and Childress affirmed be was not a member of the .grand jury wbicb returned tbe indictment, on bis voir dire examination. Tbe record shows that Childress was a member of tbe grand jury. Tbe attorneys for appellant testified on tbe motion for a new trial tbat Childress was asked, along with •the other jurors, if be was a member of tbe grand jury wbicb returned tbe indictment, and answered tbat be was not. Chil-dress testified, however, tbat according to bis recollection no such question was asked on bis voir dire examination. However, tbis may be, it appears tbat Childress did not remember having been a member of tbe grand jury, at tbe time be was accepted on tbe trial jury, or at any time during tbe progress of the trial, and only recalled it after verdict bad been rendered and bis attention called to tbe matter. He further testified that at the time of the motion for a new trial he had absolutely no independent recollection of this case having been investigated by the grand jury of which he was á member and the only way he knew he was a member of the grand jury was because the record showed him to have been. He further testified that he was not present during all of the sittings of the grand jury, that he went home every night, and it is quite likely, indeed, that this case was investigated, and the indictment returned at a time when the juror was not present. It is perfectly manifest that the juror was not biased, prejudiced, had no opinion as to the guilt or innocence of the accused, and was. a perfectly competent juror under the statutes of the ■state. The grand jury, at most, is a mere inquisitorial body, and does not pass, or assume to pass, upon the guilt or innocence of the parties brought before them for investigation; so that unless it shall be made to appear that the juror was biased or prejudiced, or had a preconceived opinion as to appellant’s guilt, or had designedly and fraudulently procured himself to be empanneled as a trial juror, appellant is in no position to successfully complain.
   Whitexeld, C. J.,

delivered the opinion of the court.

In this case a member of the grand jury which found the indictment in this case sat upon the petit jury which tried the appellant. It was held in Beason v. State, 34 Miss. 604, that this was fatal error. Reversed and remanded.  