State v. Copp, 34 Kan. 522

The opinion of the court was delivered by

Horton, C. J.:

The appellant — defendant below — was indicted by a grand jury at the October term of the district court for Wabaunsee county, for the year 1884, for selling intoxicating liquors in violation of the prohibitory liquor law. At that time Wabaunsee county was a part of the third judicial district, which then embraced the counties of Shawnee, Pottawatomie, Riley, and Wabaunsee. The defendant gave bail for his appearance at the next term of the district court of Wabaunsee county, which then, by law, was to convene on March 2, 1885. (Laws of 1883, ch. 93.) Before the time for *527the convening of the district court in March, 1885, the twenty-first judicial district was created, composed of the counties of Pottawatomie, Riley, Wabaunsee, and Osage, and thereby the terms of the district court of Wabaunsee county were changed, so that the first session of the district court for that county for 1885, under the provisions of the act creating the twenty-first judicial district, was to convene in that county on the second Monday of July, 1885 — July 13th. (Laws of 1885, ch. 139.) However, in pursuance of an adjournment of the October term of the district court for Wabaunsee county for 1884, the district court of that county convened on March 16, 1885. At this session of the court the defendant made a motion to quash the indictment. Counsel in his brief does not point out specially any defects in the indictment, and we are not advised in what particulars he claims it to be fatal. Our examination convinces us that the motion to quash was properly overruled, as the indictment appears to us to be sufficient in form. The defendant filed a plea in abatement, setting forth various defects and irregularities in the selection and drawing of the grand jury; also, that after fifteen persons had been drawn to form the grand jury, the district judge illegally and without excuse rejected three persons therefrom, and arbitrarily and corruptly caused the sheriff to summon three other persons to act in their places. The plea further stated that at the time the indictment was found, the grand jury consisted of thirteen persons only. We have already held that no plea in abatement, or other objection, can be taken to any grand jury duly charged and sworn, for any alleged irregularity in their selection, unless the irregularity, in the opinion of the court, amounts to corruption. (Crim. Code, § 79; The State v. Skinner, ante, p. 256.) The question therefore arises upon the record, whether the alleged irregularities in the selection of the grand jury, or any members thereof, amounted to corruption; and further, whether the grand jury finding and returning the indictment had sufficient members to constitute a legal grand jury.

*528„ „ „. 1. Grand jury; ívrongmotive, not assumed. *527The evidence offered in support of the plea shows that the *528district court excused some of the persons summoned to serve as grand jurors; but nowhere does it appear that these persons were irregularly, arbitrarily, illegally, or improperly rejected. We must assume, in the absence of evidence to the contrary, that the persons excused or discharged were so excused or discharged for good and sufficient reasons. The statute provides that in case any grand juror fails to attend, or is discharged, his place shall be filled by a talesman. When the panel of a grand jury is not filled by persons drawn and summoned by order of the court, talesmen are to be selected in the discretion of the sheriff. In this case, the district judge gave to the sheriff the names of six persons to serve as grand jurors in the place of those discharged, and requested the sheriff to summon them. Two of the persons so summoned served upon the grand jury that found the indictment against the defendant. The action of the district judge in giving to the sheriff the names of persons to act as talesmen and requesting him to summon such persons was irregular, as neither the district judge nor the district court has the power to control the sheriff in this discretion, unless expressly authorized by the statute; yet we are not to assume, in the 7 J ^ 7 absence of proofj that the district judge acted £rom ally wrong or improper motive; and therefore we cannot say that the alleged irregularity in the selection of the -jurors amounted to corruption. In civil cases, where there are not jurors enough to form a panel in any cause, and either party to such cause, by himself or his attorney, shall so request, it is the duty of the district judge to select the jurors and cause a venire to issue for the persons so named by him. (Laws of 1876, ch. 104, §6.)

We lately held in The State v. Skinner, supra, that a plea in abatement, being a dilatory plea, is not to be favored; that it must be pleaded with strict exactness, and be certain to every intent. Applying this rule of interpretation to the exception taken to the grand jury on account of insufficient numbers, we must consider the plea to refer to the grand jury at the time the indictment was found and presented, and not to the grand *529jury as originally summoned and sworn. The plea nowhere states that there were not fifteen grand jurors summoned and sworn for the October term of court for 1884. The indictment alleged that at that term of court a grand jury for Wabaunsee county was “duly impaneled, sworn, and charged.”

2 indictment thoughagmn’d juror absent. The evidence which the law requires to show a concurrence of the requsite number of the grand jury in finding the indictment is, the indorsement of a “true bill” thereon, and the signature thereto of the foreman. (Crim. Code, §95; Laurent v. The State, 1 Kas. 313.) The indictment on its face shows it to be the act of the grand jury; that is, the concurrence of at least twelve grand jurors. Anciently the accusing body consisted of twelve only. The legislature of this state has fixed the number of persons to be summoned and sworn as a grand jury at fifteen. (Crim. Code, § 74.) An indictment may be found with the concurrence of twelve grand jurors. (Crim. Code, §§ 95, 96.) The evidence offered in support of the plea in abatement tends to show that one of the persons originally impaneled and sworn as a grand juror was absent at the time the indictment was found and presented against the defendant. For what cause, or why absent, the record does not disclose. We think the absence of any member of a STand jury on account of sickness, or any other cause, would not prevent the other members of , ¶ -¶ . /> r» t t , the grand, jury from finding and returning indictments, provided, of course, there were twelve members left to transact business. For an elaborate discussion of this question, see the opinion of Judge Dillon, in The State v. Ostrander, 18 Iowa, 435. See also The State v. Miller, 3 Ala. 343; Johnson v. The State, 7 S. & M. 58; Wharton’s Crim. Pl. & Pr., 8th ed., § 341; The State v. Brainerd, 66 Vt. 432 — 48 Am. Rep. 818.

After the court decided adversely to the plea in abatement, the defendant filed a plea to the jurisdiction of the court, alleging in substance that the March term of court was being held without authority, because of the creation of the twenty-first judicial district and the repeal of the act forming the third *530judicial district. It is not necessary for the purposes of this case to decide whether the March term of the district court of Wabaunsee county for 1885 was legally held. The defendant was not tried until the July term of court for 1885, and that term of court was convened in accordance with the express provisions of the statute of 1885 creating the twenty-first judicial district.

There was no error in excusing the grand juror Anton Haag. A trial court has very extensive and almost unlimited discretion in discharging a person called to serve on a petit jury, who might, in the opinion of the court, not make the fittest or most competent person to serve. (The State v. Miller, 29 Kas. 43.)

*5313’ iSiuora-Row to be sold by row not’ *530The indictment charged the defendant with selling intoxicating liquors without having a permit, in the room of a frame building occupied by him as a residence, situated near a place called Paxico, in Newbury township, in Wabaunsee county, in this state. The testimony introduced by the state tended to establish all the allegations of the indictment; and the defendant, after introducing evidence tending to show that Dr. Bartley Smith had a permit to sell intoxicating liquors for medical, scientific and mechanical purposes, in Paxico, and that he was operating a drug store in that place at the date of the alleged sales, offered evidence that his own residence or dwelling house was between 100 and 200 yards from the drug store of Dr. Smith; and thereupon he offered to prove that he sold or delivered intoxicating liquors at his residence as the clerk or agent of Dr. Smith. We have already held that “where a druggist has a permit to sell intoxicating liquors, all his clerks and agents may sell the same in his drug store without violating the law.” (The State v. Hunt, 29 Kas. 764.) But in this case, no attempt was made to show that the defendant made the sales of liquor complained of in the drug store of Dr. Smith. On the other hand, it was shown that Dr. Smith had no cellar under his drug store and no safe place under his general store to keep intoxicating liquors; and it was further shown that as the defendant had a good cellar *531under his residence, intoxicating liquors were kept there. Now the defendant had no right, as clerk or agent of I)r. Smith, under his permit, to sell intoxicating liquors at his own residence between 100 and 200 n _ t rv> yards from Smith‘s drug store; and no offer was made by the defendant to show that there was any actual sale made at the drug store of Dr. Smith of the intoxicating liquors stored in the cellar of defendant. Neither Dr. Smith nor his clerks could lawfully sell intoxicating liquors under his permit at any other place than at his drug store. The statute expressly provides that “ said permit shall be posted in a conspicuous place in the store where such business is carried on.” (Laws of 1881, ch. 128, § 2.) Dr. Smith could not, under his permit, pretend to sell intoxicating liquors in his drug store and give orders upon another person occupying a different building to deliver to the purchaser liquors from bottles, kegs or barrels where no separation of the liquors was made at the time of the alleged sale in the drug store, and no specific bottle, keg or barrel was sold or referred to, pointed out or marked. It is only when the terms of sale are agreed on, the bargain struck, and everything the seller has to do with the goods or articles is complete, that the contract of sale becomes absolute as between the parties, without actual payment or delivery. (Lowry v. Stewart, 5 Kas. 663; Haug v. Gillett, 14 id. 140; McCarty v. Gordon, 16 id. 35; Caywood v. Timmons, 31 id. 394.)

Several of the instructions asked by the defendant and refused by the district court state correct propositions of law, but as there was no evidence before the court tending to show that the defendant made the sales of intoxicating liquors complained of, in the drug store of Dr. Smith, the instructions were properly denied; and all evidence tending to show that the defendant made sales of intoxicating liquors at his own residence under the permit of Dr. Smith, as his clerk or agent, was inadmissible.

The judgment of the district court will therefore be affirmed.

All the Justices concurring.

Case Details

Case Name: State v. Copp

Court Name: Supreme Court of Kansas

Date Published: Jan 15, 1886

Citation: 34 Kan. 522

Court Abbreviation: Kan.