151 Mo. App. 251 | Mo. Ct. App. | 1910
This was a prosecution by indictment against Thomas Haney for unlawfully selling intoxicating liquor in violation of the Local Option Law of Wright county. A motion to quash the indictment was filed and overruled. A motion was thereupon filed to quash the regular panel of petit jurors which was heard by the court and overruled. Directly thereafter, the defendant offered to file another motion to quash the regular panel alleging (1) that the drawing or selection of said panel of jurors was by an unauthorized person, to-wit, the prosecuting attorney; (2) that the said panel of jurors was not selected or drawn by the county court in accordance with the statute; (3) that the said jury panel was not selected or drawn thirty days before the commencement of the court as provided by statute, but on the contrary was drawn and selected on February 4, 1909, and was not selected from each township in the county according to their relative population; and (4) that the jury panel was selected by an unauthorized officer, to-wit the prosecuting attorney of said county. The court refused to permit defendant to file said, motion. On the
I. Appellant contends that his motion to quash the indictment should have been sustained for the reason that the indictment was fatally defective in omitting to state the name of the person to whom the sale was made. He argues that because of this omission, 'the indictment does not charge the crime in terms so definite as to enable him to plead an acquittal or conviction in bar of another prosecution for the same offense.
This objection was presented many years ago and it has been since uniformly held that an indictment for selling liquor without a license, as here, need not state the name of the person to whom the sale was' made, or. that it was made to some person or persons to the jurors unknown. [State v. Spain, 29 Mo. 415; State v. Ladd, 15 Mo. 430; State v. Fanning, 38 Mo. 359; State v. Jaques, 68 Mo. 260; State v. Houts, 36 Mo. App. 265; State v. Wingfield, 115 Mo. 428, 21 S. W. 1107; State v. Back, 99 Mo. App, 34, 72 S. W. 466.]
II. But it is seriously contended that appellants challenges to the sixteen jurors who were resummoned should have been sustained for the reason that the prosecuting attorney had assisted in selecting the original panel of which they had been members.
The motion to quash the panel not only alleged that the prosecuting attorney assisted in selecting the panel, but also that said panel was not selected or drawn thirty days before the term as provided by statute (which was a fact). Section 3769, Revised Statutes' 1899, provides in no uncertain terms that the county court, at a term thereof not less than thirty days before the commencement of the circuit court, shall select names of jurors, etc. The original panel might well have been discharged for this reason.
There was evidence offered in support of the motion to quash the panel tending to show that the prosecuting attorney was present when the names of jurors were selected, and that he rendered some assistance; that the county clerk, deputy county clerk, and circuit clerk all made some suggestions as well as the prosecuting attorney, and a personal assessment 'book was used for getting names; that the court always approved the names suggested. The prosecuting' attorney admitted that the county court-asked him about a certain man whose name was suggested and he told them he was-a good man, but said, “I don’t know how he would
' From this evidence it does not appear that the prosecuting attorney or the members of the county court acted from improper motives or had anything in mind except the selection of good men for jury service. This subject has received an exhaustive examination in the case of State v. Austin, 183 Mo. 478, 82 S. W. 5, where it is clearly stated that while no improper motive may have actuated the prosecuting attorney in his participation in the selection of the panel, “still common fairness, and the constitutional guaranty of the right to trial by an impartial jury, should clearly prohibit him from doing so.”
But the panel in this case to which objection was made was discharged and the sheriff was ordered to summon another panel from bystanders as provided by section 3770, Eevised Statutes 1899. The sheriff, in doing so, selected sixteen men who had been summoned on the discharged panel. No bad faith is charged to the sheriff. The evidence of these jurors upon their voir dire discloses that they were qualified to serve in every way, and defendant’s only objection to them was that they had been summoned on the original panel. The error in selecting the original panel only attached .to the panel as such, and not to individual members. The error in the manner of selecting the original panel did not instill bad motives into the breast of any member thereof or render him personally incompetent. It was
The instructions of the court fairly embodied the law and appellant has had, a fair trial and received the lowest punishment allowed by the statute. Finding no error, the judgment is affirmed.