29 Mont. 218 | Mont. | 1903
delivered tbe opinion of tbe court.
Tbe defendant was convicted by a jury of tbe crime of grand larceny, and was sentenced to a term of one year at bard labor
Ai motion for a new trial was made upon three grounds: (1) That the jury received evidence out of court other than that resulting from a view of the premises and from a view! of the mares which they inspected; (2) that the court misdirected the jury in matters of law, and erred in the decision of questions of law occurring during the course of the trial; and (3) that the verdict was contrary to the law and the evidence.
After consideration the court made an order sustaining the motion. The state has appealed.
The procedure to be observed upon motions for new trial in • criminal cases is prescribed by Sections 2190, 2194, of the Penal Code. Section 2194 directs what the contents of the notice shall be. It “must designate the grounds upon which the motion will be^ made,” but there is no requirement that it shall state anything further. The first part of the section declares that, if the motion is made upon any of the grounds mentioned in Subdivisions 2, 3, 4 and 7 of Section 2192, it must be based upon affidavits, otherwise it must be based upon a bill of exceptions. Therefore the grounds stated in the notice are of themselves notice of what, will be the basis of the motion.
The attorney general cites in support of his contention Rutherford v. Talent, 6 Mont. 112, 9 Pac. 886, and Arnold v. Sinclair, 12 Mont. 248, 29 Pac. 1124. These cases are not in point. They are both civil cases, and, so far as they discuss the contents of the notice, they refer to requirements of former provisions of our Code of Civil Procedure which are obsolete: The former refers to the Devised Statutes of 1879, and the latter to the Compiled Statutes of 1887. There is no such requirement in the present Code of Civil Procedure (Section 1173).
Section 2171 of the Penal Code provides that: “When a party desires to. have the exceptions taken at the trial settled in a bill of exceptions, the draft of the bill must be prepared by him and presented', upon notice of at least two days to the county attorney, to the judge for settlement within ten days after judgment has been rendered against him., unless further time is granted by the judge, or by a justice of the supreme court,” eta The power of the judge or a justice of this court to extend the time for the preparation of bills of exception jn criminal cases is not made by this section to depend upon the consent of the county attorney; nor is there any other provision applicable. Section 1897 of the Code of Civil Procedure applies in terms only to extension of the time within which an act is to be done under the provisions of that Code. The bill was therefore presented
Tbe order granting the motion does not specify the particular ground upon which the motion was granted. If, therefore, there is merit in any one of the errors assigned, the action of the couid must be sustained. (State v. Schnepel, 23 Mont. 524, 59 Pac. 927.)
Under the statutes (Sections 243, 263, 265, Code Civ. Proc.) it is the duty of the clerk of the district court to keep three jury boxes, designated as boxes Nos. 1, ,2 and 3. In box No. l'the clerk is required to deposit and keep the ballots containing the names on the jury list prepared byi the jury commissioners for the current year. (Code Civ. Proc Sees. 240-244.) This list comprises the names of the regular jurors. (Id. Sec. 245.) In box No. 2 the clerk must deposit from time to time and keep1 the ballots containing the names of all persons who have served during the year. (Section 263.) Box No. 3 is to contain the names, upon duplicate ballots, of all competent jurors residing in the city or town where the court sits. (Section 265.) Sections 260 to 2.64 direct when and how the drawing shall be conducted. When the order is made by the court directing a panel to be drawn and fixing the required number (Section 260), the clerk proceeds in the presence of .the court to draw from box No. 1 (Section 261). The persons whose names are drawn are then summoned by the sheriff. (Id. Sec. 280.) If there are not sufficient names in box No. 1 to malee up the required list, the drawing must be continued from box No. 2. Besort can be had to box No. 3 only under the circumstances indicated in Section 281.
Upon the trial of the challenge it appeared that, after the calendar had been called to fix the dates for the trial of causes, the court directed the clerk to draw a panel from box No. 3,
A party to an action, if he is entitled as a. matter of right to a trial byl jury, is also1 entitled, at the commencement of the trial, to a panel drawn in substantial conformity with the requirements of the statute. This rule has been recognized by this court since the early case of Dupont v. McAdow, 6 Mont. 226, 9 Pac. 925. When that case Was tried, the statute required the panel to consist of twenty-four qualified jurors, and. that when this panel became exhausted, but not before, the court might direct the sheriff to summon, from the body of the county. — and not from bystanders — a panel consisting of qualified persons to furnish the list out of which to' complete the jury. The panel at the commencement of the trial consisted of twenty-three persons only. The challenge of the defendant being overruled, and the jury not having been completed, a special venire was issued. The territorial court held this to be prejudicial error, and directed a new trial. Again, in State ex rel. Root v. McHatton, 10 Mont. 310, 25 Pac. 1046, this court held that a jury panel not drawn in substantial conformity with the statute then in force (Sess. Laws 1889, p. 166) was not a lawful panel, and by mandamus directed the district judge of Silver Bow county to proceed in conformity with the statute.
Section 2000 of the Penal Code provides: “Trial juries for criminal actions are formed in the same manner as trial juries in civil actions.” The provisions of the sections, of the Code of Civil Procedure above cited therefore apply to criminal cases, and, applying the rule laid down in the eases cited, it was error to draw the jury from box No. 3' until the. emergency contemplated by Section 281 had arisen!. The clear import of this provision is that box No. 3 may not be resorted to at all until it has been ascertained that there is not a sufficient number of trial
The attorney general insists that these affidavits should not have been considered by the court, because it appears from their face that they had not been sworn to by the subscribing affiants, the notary public having failed to attach his name to the jurat. Whether the affidavits were in fact sworn to or not is of no moment, though at the time the motion was submitted, and upon objection toi a consideration of them, the notary filed his affidavit undertaking in this way to supply the alleged defect. Counsel for the state filed several counter affidavits tacitly admitting all the statements contained in the alleged defective affidavits, except that demonstrations were made by the spectators present at the time of the inspection. Counsel for the state having treated the affidavits as properly sworn to by filing counter affidavits controverting some of the matters alleged in them, they must be held to have waived their right to object to a consideration of them on the ground alleged when the motion came to be heard. They could do> this if they chose, just as a defendant in an ordinary action may wlaive his right to object to a complaint because it is not verified by answering to' the merits. The purpose of the requirement that the pleading must be verified is to secure good faith in the pleader, to confine the litigation to matters1 really in dispute, and thus to avoid false and frivolous issues. (Phillips Code Pleading, Sec. 224; Johnson v. Puritan Mining Co., 19 Mont. 30, 47 Pac. 337.) After the issue is made, it is too late to object. The same principle
If the court granted the motion on the ground that persons present indicated to the jury by their actions or the sounds uttered a belief as to the ownership: of the younger mare, the order should be affirmed, for we cannot say that the discretion of the court was abused in this regard. Whether these persons intended it or not, the jury, by means of their behavior, received evidence other than that obtained from the inspection and what was cominimi dated to them by sworn witnesses in the court room, and probably determined the merits of the case, in part at least, upon a consideration of such evidence.
The fact that the jury inspected the three animals, while the order referred to one only, and were permitted to. observe their behavior, is not included in the grounds assigned for a new trial in the notice of intention. It was discussed at the hearing, however, and for this, reason we venture to give it some notice. From this source the jury also, received evidence out of court which must have been prejudicial.
In granting the order of inspection the court evidently acted under the authority of Section 2091' of the Penal C'ode, under which a trial judge may permit the jury to. “view the place in which the offense is charged to have been committed, or in which any other material fact occurred.” It will be noted, however, that this section limits the inspection to inanimate objects, which can make no manifestations to the jury, and thus furnish additional and independent facts confirmatory of the testimony of witnesses. Even under this, section the defendant must be present-, and the inspection must be so guarded and hedged about that the jury may not have communicated to them any facts which they may not gain from the inspection alone. They should not be permitted during the inspection to. make experi
Objection was made by counsel for defendant that the record furnished to this court by the clerk of the district court is not such as. is required by the statute. T'o obviate this objection, the attorney general submitted a motion for leave to^ amend. In the consideration of the case; we have proceeded upon the theory that the record is, sufficient to, present the questions considered and decided. Some of tire; more important questions presented by the motion arise touching the method which ought to be pursued in having] the record' made up. ini the district court. The provisions of thei Penal Cbde in force at the time the bill of exceptions wasi prepared in this, case (Sections, 2171, 2229), indicating the method by which certain papers, used upon the motion for new trial shall be identified and transmitted to this court, have been supplemented by suitable legislation obviating the objections urged. (Session Laws 1903, p,.. 47.) We have deemed it unnecessary, therefore, to, consider and, determine any of these questions.
The order appealed from is affirmed.
Irmed.