85 P.2d 352 | Mont. | 1938
All of the decisions hold that there must be a substantial compliance with the statute in selecting, drawing and summoning *336
those who are to serve on a jury panel and the statutory manner of drawing has always been held to be one of the paramount requisites to the formation of a valid jury panel. (State v.Landry,
If the knowledge of an irregularity is obtained before trial then there must be a challenge to the panel. (Anderson v.Southern P. Co.,
The manner in which the additional jurors were drawn from jury box No. 3, and selected to form a part of the regular jury panel from which the trial jury was drawn to try the instant case, was wholly irregular and void, and in effect resulted in having no jury panel at all from which a trial jury could be drawn to try the said cause. This conclusion was *337
aptly stated in the case of Bradley v. Shreveport Gas etc.Co.,
In numerous jurisdictions the rule is flatly laid down that an objection to the panel or array comes too late when it is made after verdict, irrespective of the fact that the party may not have been aware that a ground of challenge existed. (State v.Hilbish,
But it is not necessary to rely upon the above authorities to sustain respondent's contention, for it is the law everywhere that even though the failure to interpose the objection until after the verdict was due to lack of knowledge on the part of the party complaining that a ground of objection existed, still if the lack of knowledge was the result of a lack of diligence, which would have disclosed the ground, then the objection comes too late. (3 C.J., p. 803)
Now, in the present case we have, in the first place, the fact that the manner in which these jurors were drawn was affirmatively set forth in the minutes of the court in the case of Shea v. Great Falls Coach Lines Co., tried before the present cases came on for trial, and that the matter was thus a matter of public record. Moreover, we have the additional fact that J.P. Freeman, who is one of counsel for appellant herein *338
and who actively participated in the trial of this case, was likewise one of the counsel who actively participated in the case of Shea v. Great Falls Coach Lines Co. Under these circumstances lack of diligence on the part of appellant to discover the manner in which the panel was made up affirmatively appears. The following authorities establish the proposition that an objection to the panel made after verdict under such circumstances comes too late. (Sprague v. Brown,
Since a jury trial itself may be waived by a party, it necessarily follows that any lesser right or privilege incident to a jury trial may be waived, and likewise that such waiver need not be expressed but may be implied under such circumstances as prevailed here. (35 C.J., p. 363; Cohen v. People,
The errors assigned relate to the failure of the trial court to grant the motions for new trial. Cascade county, in which the cases were tried, is in the eighth judicial district, which district has two district judges. Both maintain chambers at Great Falls. It appears from the record that on April 19, 1937, in the trial of a cause then pending in the district court of Cascade county, the Honorable H.H. Ewing presiding declared *339 an emergency and ordered a special venire to issue, to be drawn from jury box No. 3. A like order was made by the same judge in the same case, and a further venire ordered drawn from the same jury box on the succeeding day. From among the jurors drawn, certain of them from both panels reported and were added, pursuant to the order of the court, to the regular trial panel theretofore drawn and in attendance upon the court. The other district judge, Honorable C.F. Holt, did not participate in the drawing of these two special panels.
Subsequently these cases came on for trial, with Judge Ewing presiding, and when the trial jury for these cases was drawn Judge Holt did not participate in the drawing of the jury. Some of the jurors drawn in these special panels were selected as jurors on the trial of these cases. No challenge to the array was interposed and no objection made challenging the right of any of these jurors to serve, until the motions for new trial were made.
Sections 8903, 8904, 9334 and 9341, Revised Codes, were amended by Chapter 151 of the Laws of 1937 (sec. 1-3, 5). They relate to the drawing of regular panels of trial jurors, the drawing of jurors for the trial of issues of fact in any case, and the drawing of jurors from jury box No. 3, where they are drawn for the purpose of participating in a single cause. The amendatory Act does not expressly amend section 8911, relating to the drawing of jurors from jury box No. 3 for the participation in the trial of cases. These amendatory sections provide that in counties where there are two or more district judges residing, each of such judges must participate in such drawing, and the capsules shall be drawn alternately by such judges, and lots shall be cast to determine the order in which such judges shall draw.
As stated, Judge Holt did not participate in the drawing of any of these jurors mentioned supra. It is the contention of the plaintiffs on these appeals that his failure to so participate was an irregularity in the proceedings of the court entitling them to new trials. *340
Section 9343 declares that each party may challenge the jurors[1, 2] as follows: (1) To the panel or array; (2) for cause; and (3) peremptorily. Section 9344 enumerates the various grounds for challenging for cause. We have said with reference to challenging for cause, that if "a defendant does not avail himself of the privilege of examining into the qualifications of prospective jurors before the jury is sworn, he may not assign a juror's incompetency as ground for a new trial, even though his knowledge of the incompetency comes to him for the first time after the trial." (Stagg v. Stagg,
Counsel for plaintiffs urge upon us the decision in the case of State v. Rouner,
By their failure to make timely objection plaintiffs waived any right to urge these irregularities. The motions for new trial were properly denied. The judgments are affirmed.
MR. CHIEF JUSTICE GODDARD and ASSOCIATE JUSTICES STEWART, MORRIS and ANGSTMAN concur.