61 Minn. 73 | Minn. | 1895
The defendants were indicted at an adjourned term of the district court for the crime of selling on January 14, 1895, intoxicating liquor to a minor. They moved to set aside the indictment on the grounds hereinafter stated, the motion was denied by the court, and the judge thereof certifies to this court the question whether it was error to deny said motion.
The regular general term of the district court of Polk county commenced on December 3,1894. On December 10 the grand jury appeared before the court and reported that they had finished their
“State of Minnesota, Polk County — District Court. It appearing to me that there is a necessity for an adjourned term of this court to be held at as early a day in January, 1895, as practicable, for the trial of civil and criminal cases; and it further appearing that a grand jury is necessary at said adjourned term to inquire into the crimes, if any, committed in said county, — therefore it is ordered that the December, 1894, term of this court be, and the same is, adjourned to, and will be held at, the courthouse in the city of Crookston, in the said.county, on Tuesday, the 15th day of January, 1895, at ten o’clock a. m. of that day, at which time the petit jury, and each and every member thereof, unless duly excused, will appear and be in attendance on said term. And it is further ordered that Nils Muus, clerk of this court, be and hereby is instructed forthwith to draw a grand jury for said adjourned term in the manner prescribed by law for drawing jurors, and on or before the first day of January, 1895, to issue his venire to the sheriff of said county, directing and commanding him to duly summon such jury to be and appear before this court, as grand jurors at such adjourned term, at the time and place before named. Dated this 22nd day of December, 1894. By the Court. Frank Ives, Judge.”
Pursuant to this order, on the same day, the clerk, in the presence of the sheriff and a justice of the peace, drew from the jury box the names of 23 grand jurors, in the manner prescribed by G-. S. 1894, § 7175, and on the same day the clerk issued to the sheriff a venire commanding him to summon the persons so drawn to appear before the court at said adjourned term. Said jurors
1. It is urged by defendants that the court had no power to order this grand jury for this adjourned term. We are of the opinion that the court had such power. G. S. 1894, § 4850, provides for the holding of adjourned terms, and provides that the judge “may direct grand and petit jurors to be drawn and summoned for any adjourned or special term, in the manner prescribed by law.”
2. It is further urged that, if the court had power to order the summoning of such special grand jury, it should have been summoned by the sheriff from the body of the county in the manner prescribed by G. S. 1894, § 4852. We are not of that opinion. Section 4852 applies where, “at any term of any district court, there is a deficiency of jurors,” or “an entire absence of jurors of the regular panel, whether from an omission to draw or to summon such jurors, or because of a challenge to the panel, or from any other cause.” In these cases the court may order a special venire to issue to the sheriff of the county, commanding him to “summon from the county at large * * * competent persons to serve as jurors.” Under this section jurors are not “drawn” at all, but simply “summoned” by the sheriff from the county at large. But under the provisions of G-. S. 1894, § 4850, the court may' direct grand jurors “to be drawn” and summoned for an adjourned term, which was done in this case.
3. It is further urged that no legal list of grand jurors had ever been prepared or certified to as required by G. S. 1894, § 673, which requires the county commissioners to “make out separate lists” of grand and petit jurors, “which lists shall be certified and signed by the chairman of the board, attested by the clerk, and shall be forthwith delivered to the clerk of the district court.” At the head of the list in question it is stated that: “The names were selected by the board of county commissioners of Polk county, at the adjourned annual meeting held on January 29, 1894, to serve as grand and petit jurors, respectively, for the ensuing year. Grand Jurors: [Then follows a list of the names of grand jurors, and the place and election district in which each resides.] Petit Jurors: [Then follows a list of the names of petit jurors, and the place and
4. There is nothing in the point that there were but 49 names on-the grand jury list when this special grand jury was drawn, the number on said list having been reduced to 49 by the drawing of the grand jury for the regular December term, and the county commissioners not having met after that drawing and before the drawing of such special grand jury for the adjourned term.
5. A former indictment for the same offense was found against the defendants at said adjourned term by the same grand jury. The defendants demurred to that indictment, and on the day set for the argument of the demurrer, but before the argument, the indictment was dismissed on the motion of the county attorney, and the case was resubmitted to the grand jury, who found the indictment here in question. G. S. 1894, §§ 7297-7299, provide that if such a demurrer is sustained the defendant shall be discharged, unless the court directs the case to be resubmitted to the same or another grand jury. It is urged that such dismissal was equivalent to sustaining the demurrer, and that it does not appear that the court ordered the case resubmitted. It is sufficient answer to this to say that it does not appear that the court did not so order, and error will not be presumed. But we are of the opinion that this provision of the statute cannot be extended in this manner. 'The demurrer was not sustained, and such a dismissal is not equivalent to an order sustaining the demurrer.
6. It is claimed that the indictment here in question was returned on the same evidence on which the former indictment was found; that no other evidence was given before the grand jury,— and it is urged that the grand jury cannot act a second time on the
Tbis disposes of all tbe questions raised. We are of tbe opinion tbat tbe court below did not err in denying tbe motion to set aside tbe indictment, and tbe cause is remanded for further proceedings.