This сause is certified here by the district court for Scott county after its refusal to quash and set aside indictments against defendants in view of the importance of the questions submitted.
Defendants Henry Schreiner and H. B. Strait were partners engaged in private banking business at Jordan under the name of the
An investigation of the affairs of the bank was instituted at the October, 1904, term of the district court for Scott county, though neither Strait nor Schreiner was under recognizance to appear. A subpcena was issued to the trustee, Habegger, personally to attend before the grand jury, where he brought the books and papers of the bank at the request of the prosecuting attorney. Indictments were returned severally against Schreiner and Strait, when it was moved in behalf of Schreiner, and afterwards of Strait, to set aside the same upon the ground that the use of the books and papers of the bank in the hands of Habegger was improper, and thereby infringed defendants’ constitutional rights as citizens secured by section 7 of article 1 of the state constitution, which provides that no person shall be compelled in any criminal cause to be a witness against himself, and by section 10, which provides that “the right of the people to be sеcure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated.”
While it would not be proper to disclose testimony received before the grand jury, and it would ordinarily be presumed thаt material evidence only was introduced, yet we are not inclined, in view of the probable consequences of our decision at the trial of the cause, to avoid the questions raised whether the use of the trustee and the books of the bаnk was in defiance of the constitutional rights secured to the citizen under the organic law of the state, particularly since it has been regarded as of importance by the trial court.
In the case of Boyd v. U. S.,
In the case at bar no subpoena or process to produce the books of the bank was directed to the defendants, or authority exerted to obtain their possession from the person in whom their custody was originally held. Nо objection appears to have been made to the delivery of the books to the receiver or trustee in bankruptcy. Records and documents which were of their nature quasi public were made subject to the inspection of the сourt for an investigation of the affairs of the bank to determine the rights of the defendants and their
It cannot, upon reasonable grounds, be justly claimed that courts will institute an inquisition upon the means by which documentary testimony is obtained, even though evidence may have been illegally taken from the possession of the party against whom it is offered or otherwise unlawfully obtained. This is no valid objection to their admissibility if they are pertinеnt to the issue. 1 Greenleaf, 325n. Defendants rely upon the case of Blum v. State,
So far as the facts in the case at bar are concerned, the books and papers were to a certain extent of a public nature, containing, doubtless, accounts of depositors to a large extent, which came into the hands of a trustee in bankruptcy. No objection was made to the use of them by the defendants. They were in fact surrendered to the trustee for all legal uses. Although it was said to have been without their knowledge, yet it will not be implied that whatever would be injurious to an accused pеrson would be in opposition to his wishes, or require that the court should assert his rights, or on that ground that the court would forbid its production in the ordinary and legal course of administration of law instituted, as here, by a voluntary proceeding of accused, wherеby the same went into the hands of the agent of the court for inspection, and the defendant’s personal rights were not interfered with, or the security of his papers violated, in the sense which would invoke the protection of the constitutional guaranty relied upon by the defendants. We are of the opinion that
When the district сourt convened there was a full complement of grand jurors, twenty three in number. Three were excused by the court on account of being over age; still another was excused without any reason appearing therefor; another was excused on account of being related to Henry Schreiner, when the panel returned into court and reported that they had disposed of their business except the cases of the state against Schreiner and Strait. Five members of this panel so rеported severally asked to be excused on the ground that each was a depositor in the Scott County Bank, which failed in November, 1903, and, each being sworn, so testified, when it was ordered by the court that such grand jurors be excused, when it appeаred to the court that there was a deficiency, there being only thirteen remaining when sixteen were necessary, at least, for a quorum; whereupon a special venire was issued to the sheriff requiring him to summon ten electors to appear fоrthwith to supply the deficiency, which was done. The special venire was returned within' due time with the names of ten persons appearing thereon who were sworn, and added to the panel, when the entire grand jury retired to perform their duties, and in due timе returned the indictments which are made the subject of this review.
It is now claimed on the part of defendants that the grand jury as newly formed and constituted in the manner stated was an illegal body; that ten of their number had no right to participate in its proceеdings, and such participation invalidated every act of the body itself. It is insisted that the authority of the court to excuse a member of the grand jury is to be found in section 7181, G. S. 1894, which reads as follows:
The court shall not excuse from service upon either the grаnd or petit jury any person duly drawn and summoned to serve thereon, except upon the ground that the person so summoned and seeking to be excused is either physically or mentally unable or unfit, in the opinion of the court, to attend or serve as а juror,*391 or by reason of serious sickness of some immediate member of the family of the person so summoned.
This is a general provision, applying to all juries, and cannot be construed literally to limit the discretionary powers of the court, but more properly to apply to such excuses as jurors may offer themselves when seeking to be relieved from duty. The word “shall” in this section, as is often the case, is to be construed as if it were permissive, rather than mandatory, for it must be obvious that there are many reasons why a juror may be excused by authority of the court in cases not mentioned — as of his own sickness: — and in turning to causes for challenge of a juror in sections 7190 of this chapter, where such challenges are interposed by an accused party under recognizance, the authority of the court to excuse a juryman who is biased and cannot act impartially is clearly recognized in the sixth subdivision of such section. We have no doubt but that in the orderly conduct of the business of the court in thе formation and submission of matters to a grand jury the trial court is clothed with reasonable judicial discretion to excuse jurors, and that the court is not to be deprived of such authority because the legislature has seen fit to declare one or mоre grounds of excuse for relieving such juror from service. Thompson & M. Jur. § 580.
Had the defendants appeared and objected to jurors because they had been depositors in the Scott County Bank, and were therefore presumably biased against thеm, and the court had discharged them on that account, no objection could have heen justly made to its course in that respect; certainly the defendants could not have been prejudiced by its action. Neither could they have been, prejudiced by the independent action of the court, though no challenges were interposed by either defendant. In other words, its acts were judicial, not arbitrary, and tended to promote a fair consideration of the rights of the accused рersons. Had the trial judge, upon no grounds except a manifest purpose to set aside one jury and to supplant it with another, taken the action criticized, another question would be presented, but the course pursued was considerate, and, we think, clearly discretionary.
Orders affirmed.