*1 stiрulation to this court and examined. this exhibit was certified been altered Such examination reveals that the deed ap- change consequence that would result before this peal, properly if such been even a contеntion had court. stated,
For reasons is affirmed. judgment MR. concur. JUSTICES ANGSTMAN and CASTLES only: MR. result concurring JUSTICE ADAIR judgment, but. in the trial court’s concur affirmance foregoing opinion. not in all that is said in the HENNINGSEN, STATE REX F. S. OF MONTANA ex rel. SMITH, DIS O. MEYER KENDRICK Relators, DISTRICT COURT THE JUDICIAL TRICT OF SECOND Montana, and for Sil McCLERNAN, Bow, B. HONORABLE JOHN ver Judges Respondents. Thеreof, One No. 10094. 15, 1959. 14, 1959. Submitted October Decided October *2 C. J. S. See Prohibition 7.§ Butte, Henningsen, Meyer, Smith,
Rex F. for S. O. Kendrick Henningsen orally. F. argued relators. Rex Attorney, Holland, Hennessey, County
Maurice F. Robert J. Butte, County respondents. Hennessey, F. Attor- Maurice ney, argued orally.
OPINION THE OF COURT pro- Petitioners seek a writ original proceeding. This is an Honorable B. Mc- John this court directed to hibition from the Second Judicial Clernan, Judge of the District Court of Bow, prohibit and for the of Silver pending now calling and criminal eases judge from civil said venire, or to pending jury panel to be tried before a array, drawn the statutes otherwise than in accordance with of Montana. giving challenge
The facts rise to the to the venire relators, Bar, rise giving who are members of proceeding are as follows: pro-
On the Honorable John B. McClernan to- 1 in ceeded draw a No. venire Box 30,000 there had numbers en- approximately been inserted in separate closed and approximately measuring approximately numbered slips paper of unfolded 1% slips paper inches inch numbered which said 7/16 capsules, were not or other- contained or enclosed containers wise concealed. Nо. 1 the jurors’
In numbers from Box judge drew slip paper one unfolded which was contained capsule, or enclosed or otherwise concealed or container *3 number in the separate capsule, enclosed black bеing time; that 100 numbers made one number at a of the jury venire, approximately 58 representing proposed drawn the separate capsules of the were in black numbers enclosed slips approximately 42 the the unfolded of numbers were paper. of day, filed in following
On the the Court the relators jury venire, petition challenge quash the and motion to day the it was and, pre- directed to on same judge, the district open thereupon denied the sented to the in who list petition motion, pro- announced that the of and then jurors the sheriff of Silver Bow posed would delivered and the trial morning on for service term of court to commence October a writ of petition their relators filed
On Octobеr and time- procedure, parties, court. The this prohibition with unquestioned. proceedings are liness of the above, forth facts as con- setting after petition, Relators’ jury tended that the venire was not drawn in accordance with prescribed by the method chapter the 1957 Montana Session Laws reason of the fact that the numbers of each jurors separate were in identi- not enclosed cal in all respects, required by law.
It unquestioned is also that there wеre more than civil
cases and 7 criminal cases be tried in the District Court validity any in judgment verdict or entered any given subject cause question appeal could be original proceedings before this It seems then court. clear there is question appropriateness remedy no of the sought in this original proceeding.
Upon petition, prohibition alternative writ of is- was sued, Court, directed to the District return to which was filed argued and the matter on October 14.
The return jurоrs admitted deviation the selection of the statutory procedure. gave It as a reason therefor the statu- tory requirement of at per year, least one not been department had of the District Court in this year. calendar It alleged inability also to secure the required by the statute in sufficient number in time for annual expense term and of same. The return also' al- leged that no unfairness in the selection of the was 15,000 and that the use of paper slips some mixed with stаtutory capsules was compliance a substantial with the statute.
There is suggestion involved here not fraud, even a dis- enfranchisement of jurors, citizens to personal act reproachable conduct. brought The condition which about the existing situation now was discovery by the District Court of a clerical error listing prospective jurors by commission which necessity resulted in the including ap- proximately 15,000 additional names to said list and addi- *4 tion of the same amount of numbers in Bоx No. 1. question
The now before us is not any preju- as to whether may case, simply dice or result in an individual but whether judge to district the letter of need be followed the law however, that system jury clear, It protect selection. likely jury panel are appeals challenges multitudinous or to the con- litigation in the court with to arise and cause burdensome being taxpayers. sequent proceeding increased costs at responsibility question set the timely, this court has the rest. 1957 Montana Session portions chapter 1947, as amend- applicable 93-1404, here R.C.M.
Laws are section ed, provides: which prepare clerk shall
“Duty boxes. The of clerk — of each as The number and contents follows: keep box suit- typed stamped paper or other written, juror shall be identical separate capsules, enclosed material, and able ample permit size said in a box ,and placed respects in all mixed, shall be and which said box thoroughly capsules to be as, plainly known purpose kept often capsules may be used as 1.’ Said ‘jury box No. marked, which capsule shall be used however, no necessary; provided, as marked disfigured, or so defaced or any manner whatsoever is in cap- other recognized distinguished may be that it in said shall be so enclosed No. 1. There box sules said corresponding number, to the number, only one one box 93-1503, jury list.” And section juror on the of each name amended, provides: which H.C.M. place must said 1. The clerk
“Drawing conducted. —how said may readily revolve and the same a rod so that box on as to number of times so a sufficient must be revolved box thoroughly shall become capsules in said box insure draw from said box must mixed, and thereafter containing the numbers of many capusles said time, at a ordered the court. jurors as are min- drawing shall be entered in the A minute of the
“2. names of the court, must show the utes of the jury box. drawn from said corresponding the numbers so
359 in- is so deceased person “3. If the name of drawn county, from the sane, may permanently have removed who to the appear to the satisfaction of fact shall be made list, court, shall be omitted from the person name such the be juror place, in his and fact shall and another drawn the proceeding The same entered the minutes of the court. may necessary,
shall be be until the number often shall jurors After the required shall been drawn. completed, copy shall a the list of have been the clerk make drawn, certify the same. In his persons names the so and and the certificate he shall state the date of order draw- jurors drawn, and when ing, and the number the time required appеar. to place and such be where list to sheriff for Such certificate shall be delivered and ’’ service. they apply so far as to the facts statutes herein above explicit easy comply to are im- clear, with. "We
are by given sufficient number pressed the reason As has been his- may expensive be either or difficult obtain.
torically said, immediately, impos- be done the difficult can longer. Although little desire of the takes a district sible commendable, is still progress his hе get legislative directive, plain provisions of the disregard the cannot system. note, also, We that affi- protect enacted to at indicate that are available a rea- by relators davits that, truly, compli- time and within a reаsonable sonable cost impossible. nor is neither unreasonable the statute ance with 984, 242 503, 506, Porter, 125 Mont. Pac. In v. State 985, this court stated: 235, 573, (2d) 232, 120 Mont. Hay,
“In v. laid down the Montana principle reaffirmed the this court right an that a ‘defendant has Supreme Court territorial place jury’ proper from the drawn impartial selected 226, 6 Mont. Dupont McAdow, according to law. summoned required Repeatedly 926. 229, Pac.
trial substantially court to comply procur with the statutes in ing jury. Any material deviation or is a denial of fundamental rights. constitutional Groom, State v. 49 Mont. 354, 359, 141 858; Tighe, Pac. State v. Mont. Pac. ‘‘ ‘ by jury to trial undisputed right, order right may that this preserved parties interested, it is a proposition self-evident procurement the law of their must be оbserved. This county, form of trial is and those serving must be duly qualified selected from the citizens of the *6 ’ county. Gilmer, 433, Kennon 455, 21, Mont. Pac. “In carry order guarantee to out the constitutional that ‘
accused in
prosecution
right
speedy
a criminal
to a
public
by
impartial jury
county’
trial
(Const,
of the
Mon
tana,
Ill,
16),
Art.
Legislature
provided
section
the names
eligible jurors
county
of all
placed
of the
be
in
box No.
1. R.C.M.
section 93-1404. It is from
names
in this
box
that the trial
is drawn and summoned.
R.C.M.
section
Landry,
93-1502.” See аlso
State v.
Mont. 218,
It is not the necessarily the individual but rather jury system the entire proce and the selection timely dures which must be protected, showing and when a is brought before this in court we would be remiss our duties if permitted departure we proce material deviation or from the spelled dures legislature. out prohibition
The alternative writ of issued heretofore hereby October13 is permanent. relators, being made offi representing pres cers this in clients civil causes еntly pending judi for trial in the District Court of the second district, cial in having good of said court acted faith, costs herein shall not be allowed. HARRISON, MR. JUSTICE CAS-
MR. CHIEF JUSTICE ADAIR concur. TLES and dissenting: ANGSTMAN
MR. JUSTICE departure sanction hesitate to this court should I concede that drawing statutory method of in from the a material manner be tolerated if jury. lies in the fact that danger others to deviate respect then there invitation away. statutory method be frittered thus here involved though that under the circumstances think in- judge. trial He uрhold the used
we should method departure was us under oath the reason forms follows: respondents attempted them ac-
“That and each of to quire 15,000 capsules the added which would be identical with respondents which the which would necessary compliance obtain strict with the hereinbefore to cited statute and were unable to do so. the respondents
“That are informed and believe and there- allege impossible that it is for them obtain the fore neces- sary forty-five fifty identical thousand prepare them for in sufficient time for the court in the 1959.” year
to have suggestion majority There was no opinion as stated compliance departed that strict was expense from because of capsules. provisions statute, respect it of our with As I see some *7 merely. directory Thus it seems to drawing juries, are me that used of capsules were instead black ones no one could if white yet departure statutory a therе would be complain and method. any party to either the civil
I not believe or crim- do tried as it has inal about to be before been drawn cases As them any complaint. have basis there would would prejudice. been no merely technical rom the letter o stat- It is affect not be said to substantial ute which could way obtaining no affected the fair and litigant since it jury. impartial n BOTTOMRY
MR. JUSTICE agree foregoing opinion Angstman. with the of Mr. Justice STATE OF MONTANA ex rel. STATE HIGHWAY COMMISSION and HARRY L.
o f State of Montana BURNS, SWANSON, WATERS, L. HAL V. OTIS S. S. N. SORRELS, VORSON ROY L. as Members Constituting Highway State Commission DISTRICT COURT Montana, Relators, DISTRICT, COUNTY, FOURTH MINERAL JUDICIAL BROWNLEE, E. HONORABLE GARDNER Judge Respondents. Thereof, 10102. No. 1959.
Submitted 1959. Decided October