207 N.W. 477 | S.D. | 1926
In these three cases a grand- jury of Pennington county returned indictments against. defendant on account of
Section 4762, Rev. Code 1919, provides that the indictment must -be set aside:
“4. When the defendant has not been held to answer before the finding of the indictment, on any ground which would have been good grounds for challenge, either to the panel or to any individual grand juror.”
Section 4660, Rev. Code 1919, provides that a challenge to the panel may be interposed for the reason:
“2. That notice of the drawing of the grand jury was not given.”
Section 5291, Rev. Code 1919, constitutes the clerk of courts, the county auditor, the county treasurer, and the sheriff as the' body to draw jurors, and provides:
“The meeting of such officers shall be after notice in writing has been served the same day upon them, or thei^r deputies, by leaving a copy of such notice in their respective offices in case any such officer or deputy is absent from the county seat. Such notice must be served by the clerk of courts, and must state the object of the meeting to be the drawing of names for jurors for the next term of the circuit court, and the place and time of such meeting.”
Written notice of the meeting had not been given to the sheriff, nor in fact to any of the other officers, but all were present, except the sheriff, who did not appear until after the drawing had been completed.
It is urged by the state that lack of written notice of the drawing is not made a ground of challenge. To be sure, the ground of challenge is simply that notice of the drawing was not given, but the statute that requires notice says it must be written notice; therefore, reading the two statutes together, the ground for challenge must necessarily he lack of written notice so long as section 5291 remains in its present form.
The order quashing the indictments is affirmed.