
    William D. Nixon vs. The State of Mississippi.
    By the words “speedy trial,” as used in thfe constitution of this state, in guaranteeing to each one indicted, a speedy trial, by an impartial jury, is meant a trial regulated and conducted by fixed rule's of law-; and any delay created by the operation of those rules, is not included in the meaning of the constitutional provision.
    The statute of this state which gives the accused a right to examine the indictment “ at least two entire days before the trial,” intends thereby two entire judicial days. In computing, therefore, the two days, the fraction of the day of its service must be excluded.
    Where a prisoner, indicted for murder, cannot, by the rules of law, be put Upon his trial until the last judicial day of the then term of the court has partially elapsed, it will not be an infraction of the constitution, entitling him to a speedy trial, for the court, on the application of the s'tate, to postpone the trial to the next term.
    The certificate of the clerk of the probate court, that the list of jurors, by whom a bill of indictment was found, was drawn in open probate court, in the mode prescribed by the law, when the clerk of the circuit court has failed to draw the jurors as required, is evidence to the circuit court that the panel has been properly drawn.
    This cause is brought, by writ of error, from the judgment of the Honorable Stephen Adams, judge of the ninth judicial district, upon a writ of habeas corpus, at the application of William D. Nixon, a prisoner, then in the custody of Charles Warren, the sheriif of Itawamba county.
    The petition for the writ, was dated in April, 1843, and stated - that the petitioner was in custody, under the charge of having murdered George W. Wiley, late of Pontotoc county; that the indictment was preferred against him, under which he \Vas then in prison, at the March term, 1843, of-the Pontotoc circuit court, and that he hád been imprisoned under the same charge, since September, 1841. The petition proceeded to set forth the various steps taken with reference to him, and concluded by making the record of his indictment a part of his petition, and prayed for his discharge.
    
      The writ was granted, and was returned with the prisoner on the 19th of April, 1843, when the investigation was held in Fulton, in Itawamba county.
    The record of the indictment and proceedings at law, showed that a true bill was found against the plaintiff in error, by the grand jury of Pontotoc county, on the I6th of November, 1841, for the murder of George W. Wiley.
    On this bill of indictment, the defendant was arraigned before the circuit court of Pontotoc county, on the 16th day of November, 1841, and on his arraignment, pleaded not guilty.
    ’ On the 18th of November, 1841, on the application and showing of the defendant, the venue in the case was changed, by the circuit court of Pontotoc county, to the county of Ita-wamba, and an order made that the defendant be conveyed to the county, of Itawamba, to answer the state on said charge, at a circuit court to be holden for Itawamba county, on the third Monday of April, 1842. On the I8th of April, 1842, the cause was called in that court, and was continued until the next term of the court, on affidavit of the defendant.
    At the October term, 1842, of the circuit court of Itawamba county, the defendant moved the court to quash the bill of indictment, for reasons enumerated in the record. This motion was sustained, and the bill of indictment quashed; the defendant remanded to the county of Pontotoc, there to answer the state of Mississippi, at the next circuit court to be holden» for Pontotoc county, on the third Monday of April then next, under the same charge of murder of Wiley.
    The certificate of the clerk of the probate court, that the clerk of the circuit court, the sheriff, and the judge of probate, drew the jurors in open probate court, at the November term, 1842, of said court, is filed with the record, and appears as part of it. The jurors .thus drawn, found the second bill of indictment, for the same offence, at the March term, 1843, of the circuit court of Pontotoc county.
    On the 23d of March, 1843, on this bill of indictment, (found as aforesaid,) the defendant was arraigned, and on his arraignment, again plead not guilty, and demanded his trial, but refused to waive his right to a copy of the venue and indict■ment, for two entire days, and there not being sufficient time -remaining of the term, his motion was overruled by the court for that reason. The defendant was in custody of the. sheriff, the entire term of the court. '
    The venue was then changed, on motion of the defendant, to the county of Itawamba, (but no affidavit or other cause shown.) _
    Before the trial under the second indictment could be had, the prisoner moved to quash the indictment, because it was improperly found, by an irregular grand jury. He moved, also, to strike the case from the docket of that county, for want of jurisdiction, no affidavit to change the venue having been filed, which motions were overruled.
    No other testimony was adduced at the trial of the writ of ' habeas corpus, than the record in the circuit court. The district judge overruled the application for a discharge, and remanded the prisoner to jail; that judgment and order, this writ of error is prosecuted to revise.
    
      Davis, for the prisoner.
    By the tenth section of the first article of the constitution of the state of Mississippi, it is declared, that in all prosecutions by indictment or otherwise, the accused shall have a speedy and public trial, by an impartial jury of the county where the offence was committed.
    Was it intended, by the framers of the constitution, that this clause should have any efficacy, in protecting the citizens of the county from injustice and oppression, or was it engrafted as unmeaning and useless ? Does it possess vitality and functional duties, or is it a lifeless clause, intended only to give volume to the constitution 1
    
    However else others may regard it, I esteem it as being the life of the constitution, the impervious gegis that is to protect the citizen against judicial and legislative tyranny. Without it, the freedom which the citizens of'this country supposed they were inheriting from their fathers, would be an imaginary blessing only, and would not have an" existence in reality.
    This clause of the constitution is imperative in its mandates, absolute in its influence upon the action, both of the courts and the legislature. No discretion is vested, by this clause of the constitution, either in the judiciary or the legislature.
    Only for the protection which this clause of the constitution extends to the citizens, in times of judicial and legislative corruption, the best and most virtuous in the whole land might be made the victims of the most odious of all tyranny, by withholding from him a trial, for an offence founded in malice and falsehood.
    Does this clause mean anything? Does it intend to perform any function? If it does, what is it? Is it that the judges may exercise a discretion about the length of time that a prisoner may be confined, before he can be heard, to complain that a speedy trial has not been granted him ? Such a construction •as this, of the constitution, would result in a disorganization of the government — would amount, as I conceive, to a judicial usurpation, that would strike the mind of the patriot everywhere with horror and alarm.
    If it only intended to vest a discretionary power in the judiciary and legislative departments of the government, allow me to inquire who is to exercise the discretion, both the judiciary and legislature ?
    If it is vested in both, then there may most probably be a conflict between the two departments, in reference to the manner and the extent of its exercise. The judges say if the trial is had in ten years, it is a speedy and. impartial trial. On the other hand, the legislature says that the trial shall be had in two years. Which power is to prevail? If the power is vested in the judiciary, then it is absolute and could not be divested by any action on the part of any other branch of the government, and any effort by the legislative department to exercise the power, would not only be a nullity, but an encroachment upon the judiciary.
    
      This view of the subject makes it most manifest that no discretion was intended by the framers of the constitution, to be vested in any department of the government, but to leave it a substantive and protective power in the constitution.
    Let us consider to what consequences any other construction than the above of this clause of the constitution would lead.
    A. is indicted for a felony, he is ' arrested and imprisoned, the court arrives, he is arraigned, and issue of not guilty is made up between the state and A. A. demands a trial or a discharge, the state responds to this demand, we have no time to give to your case, and he cannot be discharged; the next court will give you a speedy and impartial trial, according to my view of the discretion vested in me by the constitution. To the dungeon he is doomed for six months to come; his companion is the chain with which he is fettered; his pleasures are such as the clanking of his chains can aiford, or the morbid and gloomy reflections of his mind, can present. The next court arrives, and the same state of things takes place. A. demands his trial, he protests his innocence, and insists that the indictment was found upon the false swearing of a false witness; he appeals to the justice of the law, he points to the tenth section of the first article of the constitution, and says that this sacred provision gives the right to my discharge; but in answer to this, he is told that clause only vests in the judges a discretion, and I determine that six months from this time will be a compliance with that section, and to the dungeon again you must go.
    The court again comes and passes in the same manner, and again and again. A. looks for the cause of all this injustice, and he finds it in the malignant and corrupt purpose of the judge himself; he sees all his hopes and prospects in life withéring ; he sees desolation spreading itself over all his hopes, over all his expectations. He has himself been brought before his tyrant, by habeas corpus; even then his discharge is refused him; he appeals to a higher tribunal, from which he demands justice; that tribunal tells him as you must, if you determine it to be a discretionary power, that they cannot interfere with the manner in which that discretion has been exercised.
    
      I ask this honorable court, if the circuit court judges can absolutely refuse a trial at one term of the court, if they cannot do so for ten terms ? If they can commence the exercises of a discretion, who can limit them ? what power on earth can restrain them ? None but the power which gave them existence, and that power, as I conceive, has already fixed that restraint, already withholden that power. Sirs, this clause of the constitution was conceived in that ancient maxim of the ancient sages of the law, that it is better that ninety-and-nine guilty men escape, than that one innocent man should be punished.
    Who is to sit in judgment upon the constitution, and determine upon its spirit and genius ? Who is to construe it, and determine upon its meaning; the people who give it existence or the functionaries created under it ? The people of course; they gave it existence, it is their creation, and they alone can control. The power of the functionary is defined by it, their duties are limited, and circumscribed; they cannot enlarge or diminish the powers of the constitution; all they can do is to look to the constitution, as the great test by which they judge of the statutes passed by the department of the government, whose duty it was to provide for the enforcement of the provisions of the fundamental law.
    Has the legislature undertaken at any time, to construe this clause of the constitution ? They have; how did they construe it? By their action they undertook a slight modification, and said if the prisoner was not tried at the first term, he should be admitted to bail, and if not tried at the second term, he should be discharged. Finally, was this done to direct the discretion of the judges? Evidently not; but it intended to vest in them power which they had not before, that of retaining the prisoner until the second term of the court, if any unavoidable accident should interpose and defeat a trial at the first term of the court.
    But what have they since done ? They have repudiated that statute, thereby determining that the clause of the constitution referred to by myself is imperative in its character, and is much too sacred to be touched.
    Will it now be contended that,the repeal of this statute vests any increased power-in the judges, or gives them any discretion ? It cannot be so determined; the courts of the country never had any discretion upon this subject; if they had, they derived it from the constitution, and the act of the legislature, to which I have referred, would have been void, because a power given to the courts by the constitution, cannot be taken from the court by the legislature, or in any way altered or changed.
    The decision, then, as I conceive, o'f the only power that can construe the constitution, has said by their acts, that this is a substantive power, intended for the protection of the citizen, and that one refusal to grant a'trial by the court, is a failure to furnish a speedy and impartial trial, in accordance with the spirit of the constitution, for which the prisoner shall be discharged.
    Suppose, if the court pleases, the legislature had made no provision for the trial of offences, or have made laws so defective that a trial could not have been had with a view to this clause of the constitution, what would your honors do? Would you say, as in this case, we have no laws to try, but we expect laws to be made, and then we will give you an impartial and speedy trial ? No, you would dare not say this; you would be bound to acquit. Then, sirs, if the laws which are in existence are refused us, are we not still entitled to our discharge ? If a trial has not been had, whose fault is it ? Have we not demanded it? Yes, for at least five terms of the court have the degrading shackles been stricken from our wrists, and we all emaciated with mental agony, been brought to the bar of the court, and demanded a legal, and speedy, and impartial trial, that we might •have an opportunity to establish our innocence, and be returned to our liberty, of which we had been deprived for three long and miserable years. But to all our demands we have heard the response, We cannot give you a legal trial; waive all the forms of the law, and you can be. tried. To this we have responded, and still respond, — There is no channel through which pure and undefiled justice can come, but those prescribed by the constitution and laws of the land.
    “ That it is competent for the people in convention, to establish a rule of conduct for themselves, and to prohibit certain acts deemed inimical to their welfare, is a proposition that cannot be controverted. And such a rule and such prohibition will be as obligatory, as if the same had been adopted by legislative enactment. In the former case it is entitled to more respect, than the latter.” Green v. Robinson, 5 How. 100.
    It remains now for me to examine the record in this case, and see if indeed the prisoner has been denied a speedy and impar-trial. The record shows, that at the November term, 1841, of the circuit court for Pontotoc county, a bill of indictment was by the grand jury of that county reported to the court, a true bill charging the prisoner with the crime of murder, and at a subsequent day of that term the venue was changed to Ita-wamba county. At the April term, 1842, of the circuit for Ita-wamba county, the case was continued by the defendant. At the October term, 1842, of the circuit court for Itawamba county, the whole proceedings were quashed for irregularity, and the prisoner remanded to Pontotoc county, for further proceeding. How then does the case stand, up to this time'? Three terms of the court has passed, and the state has made no preparations for a legal trial. For eighteen months the prisoner has been deprived of his liberty; for eighteen months has he worn the chains of oppression ; for eighteen months has he inhabited the dark vaults of the dungeon, amidst whose gloom he has heard no voice but the stern mandates of the officers of the law) but now the term of the court has again arrived, expectations are excited in his mind that he will have an opportunity of being heard in the justification of his conduct, and procuring, from a jury of his country, an honorable acquittal. He demands the charges preferred against him; they are exhibited; he replies that the record in the cause is irregular, and does not legally present any charge that he can be required to answer. The judge, the officer appointed by the law to conduct the trial, determines that the prisoner cannot have a legal trial, and quashes the whole proceeding. Whose fault was this ? was it the prisoner ? No ; it was the state. Has a speedy trial been given the prisoner ? No. Then is he not entitled to his discharge ?
    But the oppressions of the prisoner do not stop here. The tardiness of the law does not cease at this point. The prisoner is remanded to Pontotoc; the term 1843 of that court arrives, another bill of indictment is found, the prisoner is arraigned, he demands his trial. He hears the declaration that the court has no time to give to his case, that he cannot be tried. The intelligence comes like the knell of the doomed one. He feels his oppression, but is compelled to submit. The venue is again changed to the county of Itawamba.
    At the April term of that court, the case is again continued, but hot until the prisoner has demanded his discharge, for the reason that he is still illegally held in custody. This brings me to the consideration of the last, branch of this case, and that is an inquiry into the legality of the detention of the prisoner at this time. Is he legally detained? We think not. The record shows that at the March term of the circuit court, 1843, the grand jury which found the bill of indictment, by which we are now detained in the custody of the law, was not a legal grand jury, as we conceive.
    ^Shall the prisoner be discharged? Three years now have passed away since his first confinement; his suffering has necessarily been great; he has been deprived of the affectionate intercourse of a wife and only child, while his enemies, those who seek his blood with a tiger’s ferocity, have been loose, and have permitted no opportunity to pass to infuse deeply into the public mind their own prejudices, their own malice. On the other hand, the prisoner has been without father or mother, sister or brother, to vindicate his character, to do him justice before the public; being friendless as he is in the world, he has not asked for the privilege to give bail for his appearance.
    There is not, in the record, anything to be found, which shows the jury to have been drawn in accordance with the provisions of the statute of the state of Mississippi.
    
      The 46th section of the law provides, that thirty-six jurors shall be drawn by the clerk and sheriff, in open court, out of a box kept for that purpose; when it is not so drawn, then the clerk shall certify to the county court clerk, and the jury shall be drawn in that court by the sheriff and county court clerk, and certified to the circuit court clerk. Neither of these modes has been adopted. The same statute provides, when these modes have not been adopted, then the jury shall be drawn by the clerk' and sheriff, in the presence of the probate judge. This the county court clerk testifies, has been done; but that certificate is a nullity, because he has no authority, either by virtue of his office, or the statutes of the state, to make such a certificate. How should the circuit court have been advised, that the jury had been drawn by the clerk and sheriff, in the presence of the probate judge. It is by their certificate, and theirs alone.
    We say, then, we are illegally detained; that court after court has been permitted to pass, and no proceeding has been instituted against us; the jury which found the bill against us being entirely illegal, the bill of indictment does not produce even a prima facie case against the prisoner.
    If the court shall determine, that there is no evidence of the legal drawing of the jury, and that the proceeding, by virtue of which the prisoner is now detained, is a mere nullity, I ask if we are not to be discharged ? I ask if there is power in the law to detain us longer ?
    This court has already decided, that to say, in the cónstitution, that negroes shall not be brought into the state as articles of merchandise, is prohibitory; how then are you to determine that to say in the constitution, the accused shall have a speedy trial, is not equally as absolute, and that, refusal entitles the prisoner to his discharge from confinement, I cannot, myself, see. To answer to the formal charge, with which he stands accused, does justice require that he shall be longer oppressed 1 No.
    On the other hand, humanity speaks in her own thundering voice, in favor of his discharge; and the law, if there is law upon this subject, is most certainly in our favor.
    
      Attorney General^ for the state.
   Judge ThacheR

delivered the opinion of the court.

This was writ of error from the judgment of the judge of the'ninth judicial district, upon an investigation, by virtue of a writ of habeas corpus.

The plaintiif in error is under indictment for murder. He claimed his discharge upon two grounds; that he had been deprived, through the default of the state, of his constitutional privilege of a speedy trial; and that the indictment, by process under which he was now held in-imprisonment, is null and void.

One who is prosecuted by indictment or information has, by the constitution, his right to a speedy and impartial trial. He shall not be unnecessarily hindered and delayed, in his efforts to relieve himself from the burden of an onerous charge of crime. But the constitution also declares, that he shall not be deprived of his life or liberty, blit by due course of law. Const, art. 1, sec. 10. Delays growing out of the established mode of proceeding, which has been so established by law, equally for 'the protection of the accused, and to accomplish the design of the scheme of laws, are evils, necessarily attendant upon all human systems of jurisprudence. They are evils to which all may be subjected alike, and which constitute a part of the price paid for the advantages/far greater in proportion, thereby derived. By a speedy trial is then intended, a trial conducted according to fixed rules, regulations, and proceedings of latv, free from vexatious, capricious, and oppressive delays, manufactured by the ministers of justice.

In examining the record, we can see but one cause of delay, which did not originate, directly and immediately, from the accused himself; and that exception seems to be the one most urgently pressed upon this court. The state of facts relied upon most forcibly in the argument, as exemplifying the state’s default was, that the pending indictment was found by the grand jury of Pontotoc county, on Tuesday, the 21st day of .March, 1843, that the accused was arraigned thereon on Thursday, the 23d day of the same month, and plead thereto, and that he thereupon demanded his trial, which was refused him, as he declined to waive his statutory right to a copy of the indictment for two entire days before his trial. H. & H. 667, sec. 15.

The trial, under these circumstances, could not have taken place at that term of the court. The circuit court of Pontotoc county could continue in session six judicial days, and no longer. Laws of 1842, 221, sec. 2. The statute gave the accused a right to an examination of the indictment, “ at least two entire days before the trial.” The service of copy must have been made some time on Thursday, and he would have been entitled to the days of Friday and Saturday, for it's examination, with the advice of counsel. The statute intends two entire judicial days. The fraction of the day of its service must be excluded in the computation, not only for the reason already given, but because the greatest liberality of construction should be accorded to an accused, in passing upon his rights and privileges before, during, and after his trial. Had a different estimate been made, by including the portion of Thursday, which, as we have said, would have been erroneous, then the trial could not have commenced until some time during Saturday, the last of the judicial days of that term. It must, necessarily, have been precipitated with haste, and without that deliberation and reflection on the part of the court, which is due, as a right, in the course of law to an accused, in so solemn and awful a position.

The main reason urged against the validity of the indictment, is based upon an alleged informality of the certification of the manner in which the jurors for the term of the court at which the indictment was returned, were drarvn. There having been an omission by the clerk of the circuit court, and sheriff of the county of Pontotoc, to draw the jurors, as required by the general circuit court law, in such case provided; the certificate of the clerk of the probate court shows, in the record, that the clerk of the circuit court, and the sheriff of the county, -in presence of the judge of probate, and-during the term time of his court, did draw the requisite number of jurors, for the said March term, 1843, of that circuit court. H. & H. 491, sec. 46. The inspection and supervision of this proceeding, shows a judicial exercise of the duties of the judge of probate, which is properly, and must necessarily, under such circumstances, be certified unto by the clerk of that court. If done in vacation, the certificate may be by the judge of probate himself, but when done in term time, it must be certified by the clerk.

After a careful and elaborate examination of the record, in this case, we can see nothing that calls for a reversal of the judgment of the judge of the ninth judicial district.

The judgment is therefore affirmed.  