82 Wash. 618 | Wash. | 1914
The appellant seeks a reversal of the judgment against him upon two grounds, (1) that the lower court erred in denying his challenge to the jury panel and motion to quash, and (2) that it was error for the lower court to refuse his counsel permission to read law to the jury in addressing it in his behalf.
The pertinent statutes are 8 Rem. & Bal. Code, § 94-3:
“During the month of July of each year the county clerk of each co.unty in the state shall make up a jury list containing the names of all the qualified jurors in the county so far as*619 he may be able to ascertain the same from the latest tax-rolls and poll-books of the county or from any other official sources of information and shall ascertain so far as possible the voting precinct and place of residence of each juror and if these cannot be ascertained, the school district in which he lives. . . . The jury list shall be revised from year to year, new lists being made up each year, adding thereto the names of new residents, and omitting therefrom the names of persons who may have removed from the county, or who may have served as jurors within five years theretofore (unless they be necessary to make up a sufficient list) . . .;”
and Id., § 94-1:
“No person shall be competent to serve as a juror in the superior courts of the state of Washington unless he be (1) An elector and taxpayer of the state, (2) A resident of the county in which he is called for service for more than one year preceding such time, (3) Over twenty-one years of age, (4) In full possession of his faculties and of sound mind, (5) Able to read and write the English language.”
It is apparent that an inspection of the tax rolls and poll books would not determine the whole number of qualified jurors resident in any county. Community property is assessed in the name of the husband. The wife might not care to exercise her right of suffrage, so that her name would appear neither on the tax rolls nor poll books. Such absence would not of itself determine her qualifications as a juror; many taxpayers and electors, such as attorneys, school teachers, licensed embalmers, policemen, firemen, women, and persons over sixty years of age are by statute exempt from jury service, yet their names might appear on the tax rolls and poll books, this last statute being of course one of exemption and not of qualification. Other reasons will suggest themselves why the list of qualified jurors could not be wholly determined from these sources; and in recognition of this fact the statute vests in the court certain discretionary powers in determining the question of qualification. To aid him in making up his list, the clerk of Adams county gave to the assessor certain blank slips, to be filled out by the deputy
“Name................................ Age........
Sex ..............................................
Occupation........................................
Postoffice, School Dist. No............................
Jury District, No...................................
Taxpayer above exemptions ..........................
Qualified Voter.....................................
Read and write English..............................
Speak English, Good.........Fair........Poor........
Hearing, Good..............Fair........Poor.......”
The clerk, upon receiving these slips from the assessor, would make use of the information contained in them in making up his jury lists. In other cases, the clerk would use his personal knowledge as to the qualifications of those whose names appeared on the tax rolls and poll books as to their qualifications as jurors. The panel from which the jury to try appellant was about to be selected was drawn from jury lists made up in this manner. The act of the clerk in so making up his jury lists furnishes the basis for appellant’s challenge to the array.
The manner of making up the jury lists indicated by the statute is merely directory, and need be only substantially complied with, to the 'end that a fair and impartial trial may be had. There are decisions to the effect that statutes describing the powers.and duties of the jury commissioners and corresponding officers to whom is entrusted the duty of making up the jury lists, and prescribing the time and manner of exercising such duties, are mandatory. But in this state we have followed the great weight of authority, to the effect that such statutes 'are directory and that the fact that the officer, in the performance of his duty, failed to conform precisely to the statutory requirements, did not invalidate his act unless it appears that there is reasonable apprehension that the complaining party has been prejudiced. The purpose
While addressing the jury, counsel for appellant attempted to read to the jury from a California case, when, upon objection by the state, he was denied such right. Subsequently a second attempt was made to read certain sections of the code relating to the crime with which appellant'was charged, and from Cyc. as to the character of proof in such cases, and the same objection and ruling followed. This is the second error complained of. There is no warrant in our law for the practice sought to be followed. With us, the court, and not the jury, has to determine the law; and in order that counsel may have the benefit of the court’s view of the law, it is provided that the charge to the jury shall precede the argument of counsel. If the court has improperly instructed the jury, the remedy is by exception. If all the law applicable to the facts has not been given, the remedy is to request additional instructions. The course sought to be pursued by counsel for appellant would permit each counsel who addressed the jury to usurp the province of the court in determining the
No error is found, and the judgment is affirmed.
Crow, C. J., Parker, Gose, and Chadwick, JJ., concur.