Jones v. State, 18 Neb. 401

Jones v. State

18 Neb. 401 | Neb. | 1885

Maxwell, J.

The plaintiff in error was convicted in the district court of Cuming county of shooting at another person with intent to kill, and was sentenced to imprisonment in the penitentiary for eight years. He now prosecutes error to this *402court. It appears from the record that the March term, 1883, of the district court of Cuming county was adjourned till the 23d of June, the grand jury being discharged; that on the 23d of June 1885, an order was entered by said court requiring the sheriff to summon a grand jury from the bystanders. The sheriff thereupon summoned a grand jury from the bystanders as ordered, and such jury found the indictment against the plaintiff in error, upon which he was convicted. His attorneys thereupon filed a motion to quash the indictment, because the grand jury had not been legally drawn, which motion being overruled a plea in abatement upon the same ground was interposed, which was held insufficient. There are other questions in the case, but in the view we take of the indictment it will be unnecessary to consider them. At the last session of the legislature an act was passed “ to provide for prosecuting offenses on information, and to dispense with the calling of grand juries except by order of the district judges.” This act took effect on the 5th day of June, 1885. Comp. Stat. 1885, Crim. Code, Ch. LIV. Sec. 7 provides that “grand juries shall not hereafter be drawn, summoned, or required to attend at the sittings of any court within this state, as provided by law, unless the judge shall so direct by writing, under his hand, and filed with the clerk of said court.” At the same session of the legislature sections 660, 661, and 662 of the Code were amended to read as follows:

“ Sec. 660. The clerk of the district court or his deputy and the sheriff or his deputy, or if there be no sheriff or deputy sheriff, the coroner of the county, shall, at least ten days before the first day of the session of the district court, meet together and draw by lot out of the box, a receptacle wherein shall be kept the tickets mentioned and referred to in section (659) six hundred fifty-nine of said title, twenty-four names, and the persons whose names are drawn shall be the petit jurors. And when a grand jury is ordered the clerk or deputy clerk and sheriff or deputy *403sheriff, or coronel’, if there be no sheriff or deputy sheriff, shall then draw (16) sixteen additional names, and the persons whose names are drawn shall be the grand jury.”

“ Sec. 661. The clerk shall, on the day of the drawing aforementioned, issue an order to the sheriff, deputy sheriff, or coroner, as the case may be, commanding him to summon the persons whose names are drawn as petit jurors to appear before the district court at or before the hour of eleven o’clock on the morning of the first day of the term, stating in the order the day of the week and month and the place of the sitting of the court, to serve as petit jurors; and a like order commanding the sheriff, deputy sheriff, or coroner to summon the grand jury, when a grand jury has been ordered and drawn.”

“ Sec. 662. The sheriff, deputy sheriff, or coroner having received the order, shall, at least five days before the first day of the session of the' court, make service of said order upon each person whose name was selected and drawn as a petit juror, by reading or delivering a copy of the same to the person summoned, or by leaving a copy at his residence, except that the copy shall contain only the name of the person served and not the name of any other petit juror. And when a grand jury is ordered and summoned, service of said order shall be made on each person in the same manner as is provided for service on a petit juror in this section.”

This act contains an emergency clause, and took effect on the 5th day of March, 1885. The act requiring prosecutions for crime to be instituted by information was intended to supersede prosecution by indictment. It is a new remedy, requiring the accuser and the accused to meet face to face when prosecutions for crime are instituted, as, with the exception of fugitives from justice, no information can be filed until there has been had a preliminary examination before a justice of the peace or other examining magistrate or officer. It will thus be known in advance of a term *404of court what persons are charged with crime and the necessity, if any'exists, for calling a grand jury. The legislature evidently supposed that ordinarily such jury would be unnecessary, and the power to call a grand jury was reserved to the judge, to be exercised by him only when in his opinion the demands of public justice required it. He must determine the necessity; but when in his opinion a jury is necessary, the statute has pointed out the procedure to be followed, viz., an order in “writing under his hand and filed with the clerk of the court.” This is to be filed with the clerk “ at least ten days before the first day of the session of the district court,” and a jury will then be drawn from the receptacle, in which the names of sixty persons, selected for jurors by the county board, are kept. It will be observed that under the former statute the names of grand jurors were drawn before those of the petit jurors, while under our present law the names of the petit jurors are first drawn. This court, from it's earliest organization, has required grand juries to be drawn in the manner provided by law. Thus, in Burley v. The State, 1 Neb., 397, it is said: “ The grand jury must be selected in the manner prescribed by the law. There is no security to the citizen but in a rigid adherence to the legislative will as expressed in the statutes made for our guidance.” This case-was cited with approval in Preuit v. The People, 5 Neb.,. 377. McElvoy v. The State, 9 Neb., 158. Clark v. Saline Co., Id., 516. Priest v. The State, 10 Neb., 393. And was followed in Bohanan v. The State, 15 Neb., 209, and some other cases, without being cited, and is the settled law of this state. The importance of securing fair-minded, impartial, intelligent men for jurors, who, without feeling or bias, will weigh the evidence and be governed by it alone, cannot be overestimated. To secure such jurors the statute requires the names of electors ' to be selected in due proportion from all parts of the county. Under the former statute, where after a grand jury was discharged *405it became necessary to summon another, the court could order it summoned from the bystanders. This power, perhaps, was necessary to prevent a failure in the administration of the law in some cases; but under the present statute this power is unnecessary, and the statute is repealed by implication. The court, therefore, had no power to order a grand jury summoned from the bystanders, and as proper objections were made to the jury by a plea in abatement, the jury should have been discharged. The indictment, therefore, is invalid, and must be quashed. The judgment of the district court is reversed, the indictment quashed, and the plaintiff in error remanded to the proper authorities of Cuming county to be dealt with according to law.

Reversed and remanded.

The other judges concur.