State v. WallaState v. Walla
*1 M. DAKOTA, Plaintiff, WALLA, STATE OF v. E. NORTH Defendant. 211.)
(224 W. N. *2 Opinion March filed *3 S. State’s Register, Attorney, Geo. plaintiff. Or%m, & for defendant.
Orurn J. The defendant was indicted for in the forgery Christianson, degree third moved to Burleigh county. He set the indictment on the grounds: That the list from which the names of (1) the jurors not contain two drawm did were hundred names as required by § Laws but that 1913; said list contained one Comp. hundred sev- only names. enty-nine the That of city commissioners the of
(2) City Bismarck selecting names for the list, the apportioned that city by com- county of missioners failed to Burleigh county, comply 820, Comp. §
(cid:127)729 names select from the of the resident in this: did not Laws 1913 they names as were times as apportioned such three city, many of taxpayers so ticket name selected on and then separate to the and write each city in a box or other to be cause such tickets folded receptacle, placed the tickets in such box the lot from deposited select by and thereupon but on Bismarck; city apportioned number proper commissioners of Bismarck from selected contrary, city of such exact allotted to it resident city taxpayers commissioners, to-wit; twenty-four names, and certified board as the names selected jurors auditor same commissioners. city motion. court overruled the
The trial Thereupon, application for the defendant, for the attorneys attorneys prosecution to this halted all and certified for deter- court court trial proceedings two 7849B1, mination Laws Supp.) questions (Comp. § motion. raised court to this for determination are: questions presented was Does thé fact that drawn from a box grand jury
(1) instead names, only names, provided by 826, containing invalidate the composition jury, and indictment returned defendant set require against aside, ? the motion made himby the fact that the city Does board commissioners of (2) the names of Bismarck apportioned selecting- names of the exact number of so jurors selected city, appor them a box or from *4 instead tioned, drawing receptacle containing names to be selected as the number of prescribed by three times § render the subsequently drawn from the Laws grand Comp. and that the require indictment returned county invalid, list against here be set aside his motion to the defendant it effect? will be found in laws of this these state questions answers to
The list; of names for and the selection to relating the laws to a challenges of a to jury; relating grand organization to set an indictment. and motions jury; Laws Compiled following provisions provide
The of the list names of jurors:— the preparation each, Section 817: “In in this state wherein county terms of the- district court are held names of two hundred to persons qualified as shall be jurors act selected in the manner hereinafter from provided, which to draw if in jurors; petit provided, there are not two county hundred act as then persons qualified jurors a less number, and the number shall be highest selected. The possible, board of commissioners in county each which in county, only portion of the civil are shall to each of the townships organized, apportion to each organized townships such incorporated city village and to the county such unorganized near as portion county, may its rata be, share of such names. The number of pro names be selected from the of the not portion civil county into town- organized and not embraced within the limits of ships, or any incorporated city shall be selected the board village, commissioners -from the last annual tax list and furnished the cleric of the district court of such In each in which all the county. county, townships organ- into civil ized board of townships, commissioners shall, near as rata may be, apportion pro selected civil their among townships counties respective and among cities and therein, if incorporated villages names on the any. assessors’ lists of the several cities and for the townships, villages pre- shall be the basis for such year ceding making, apportionment.” Comp. Laws 819. 1913, § 819:
Section “Whenever the county commissioners of any county shall have made the apportionment mentioned section 817, the county shall forthwith auditor the clerk of each notify township village and clerk or auditor of each of the city of his apportionment township, clerk or and such or auditor shall village, city thereafter immediately in three cause to be in his posted public or places township, city village notice that the board of supervisors or the township, board or council of aldermen city the board of city, trustees of the be, as the case will meet to draw the village, names of qualified jurors make township, village up petit list for the Such notice jurors’ county. shall state the time and place within the of'such meeting township, city village, designating day nor than five more ten less than from the days day posting notice.” *5 in such notice “At tlie time mentioned
Section 820: and place or or the of aldermen board board of supervisors township, of or of trustees village, the board council of city city, and select from names the resident tax- be, case shall meet of may names as or three times as village of such city many payers township, commis- are or township, city village apportioned and clerk or auditor shall at such village sioners, township, city shall name so on also write each selected ticket and separate meeting so be the list of the names written and a book to record selected shall Such then names for that board compare kept purpose. with such list of names to itself that such tickets recorded such satisfy ' then correct. tickets shall be in a tickets box folded, placed shaken one of the members of the some other and board receptacle up; lot the tickets in such box or shall then select from receptacle of so his apportioned township, city village, proper the clerk or auditor shall then as the case in book be; record be names in the order such in which were they purpose kept Laws 820. drawn.” Comp. § 823 and
Sections manner of provide time, placo the duties of clerk in jury panel; prescribes § the venire. issuing reads: “Such
Section 826 number of hundred names at all two shall the number after each full, times be when kept possible, by completing at the each term of the district court; term of end clerk the county court the shall make commissioners requisition upon names as been so as to of as have drawn furnishing many for the keep full. And at board com- subsequent such list meeting hereinbefore shall mak- proceed apportion provided missioners and the same shall of such be the whole had as proceedings ing up as are herein directed be taken so required, making to such names shall not be notices full, required, except posting list the board of aldermen township, any the board supervisors of trustees of the board any any city, village, council or the names, draw but may called to do so any specially need A failure comply meeting. pro- next regular at its shall not be for challenge any jury, this section ground visions toor panel.” or petit, cither grand
732 for the of counsel respective parties stipulation
According of certificate of the the certified arose out the questions the trial judge facts: undisputed following a 935 was 10, 1928,
“On September petition containing signers, to of the district of Jansonius, Burleigh Fred court judge presented summoned for the October term of a jury that county, asking grand were male male court. Of 604 and the district signers, the-petitioners, of the cast alone were more than ten cent total vote for Gov- per signers the last election the of ernor of state at the general preceding calling said jury. grand after the
“On two was 12, 1928, days September petition presented, for the of a was filed. This order was jury an order grand calling the of district the Fourth both of the court of Judicial judges signed District. mentioned found the number of names
“The order of court above was sufficient in law, of the electors petition appearing of said court deemed the of further stated the attendance judges the due enforcement of the laws of the a necessary jury grand Dakota. North of State the clerk to summon
“The order at directed grand jury appear of the court, October term district convene on October the regular the term of the June district court of Burleigh 2nd, Following list contained 125 the names, clerk’s and that was the jury county, at in the box that time. Thereafter the clerk names of jury of number filed the requisition county commissioners, court the district make required names to up 822 required by for 75 calling Laws. Compiled of the board of county commissioners, “At a subsequent meeting the sub-divisions among this of Burleigh board apportioned names were apportioned Twenty-four county. rest balance county and the various among
Bismarck, county. sub-divisions 27th, 10th and August August following apportion-
“Between the clerk commissioners, 55 received at names, and ment list jury contained 179 calling time names number of that were in was box at names, jury. of the drawing time more than 200 are in many “There Burleigh great persons to act qualified jurors. who box since the
“That in said June, of the 55 new put the rest from Bismarck, 24 were from term of the district court, some districts failed Bismarck, having outside the city districts 55 and which accounts for the difference between in their send quota, the clerk —75. the number requisitioned by which list and box from the names
“That *7 made an drawn, found said indictment —was as under jury up —which made commissioners of said as county, by county apportionment above stated.
“That of the of Bismarck did city the board of commissioners city as names as was not select three times many apportioned city by and made tickets commissioners, and record the list separate county the same in box or other of names so written and selected, place select lot from the tickets in such box the receptacle, proper so to number city; but, apportioned contrary, from the the exact commissioners did select city board taxpayers to it commissioners, number allotted board county to-wit, same and certified the to auditor. county
“That the commission for a ten selected the period years it commissioners to in that manner. jurors apportioned “That one instance the least board supervisors at township in a box or three times failed its jurors to select by placing receptacle the clerk in the names of the to but sent it; jurors number allotted from the board taxpayers. selected by township in more names “That none of the cities sent townships, villages to them. number allotted than the after the of the order of the judges within three days receipt
“That to be clerk summoned, the jury district court, directing grand treasurer sheriff met auditor, court, county the district court. One of the other officers, the clerk of district officeof at the names out of box then drew court, jury enough the clerk than summoned to jurors. appear make to up from such box were the ones summoned to 23 names drawn “The first for the 1928 term. October, jurors as grand appear order on October was and the jury “'Court called empaneled order of the 2nd, 1928, the district pursuant judges court— both were judges present. sworn,
“Before the was the court announced that challenges would be either to considered, individual chal- jurors. No panel was lenge was interposed. Thereupon separately questioned as to his qualifications. Twenty jurors qualified as to residence, age and citizenship. the foreman
“Thereupon was selected oath administered him; thereafter the other 19 were sworn and the empaneling was then completed. instructed to their duties as grand jurors.”
At common law, as well as were petit jurors selected, sum- moned and returned the. sheriff, and manner of their selection awas matter within his discretion. 28 C. J. 17 Am. & 773; p. Eng. Enc. 10. A Law, p. was founded some or default of the or his partiality sheriff, officer, under or of the cleric who J. arrayed C. Am. panel. 788, 789; 17 & pp. Enc. Eng. 1111. As an Law, p. of the then outgrowth severity existing of criminal system there came law, into existence rules an permitting accused person almost interpose innumerable technical objections *8 an and indictment organization had which jury it. returned As a result indictments were set for frequently technical reasons. 12 B. L. purely C. 1027. p.
Lord Hale once “that the strictness in required indictments had to be blemish a and inconvenience up in the grown law and the admin istration thereof, and that more offenders ear escape by overeasy to such given indictments exceptions than by manifestation of their that innocence, and crimes have greatest gone unpunished by reason of these niceties.” unseemly State v. Minn. 72 Cooley, 71 Am. St. 75 N. W. 730. Rep.
To obviate these common-law statutes rules, have been enacted in n practically in this every jurisdiction country method regulating and 28 C. J. selecting grand jurors. drawing 773. Statutes p. have, been enacted also, specifically defects in the enumerating selection, of a organization drawing grand jury grounds a constituting or to an individual panel, or for a motion grand juror, to set aside an indictment. The object of the latter statutes was “to
735- an most which em objections end to of the technical theretofore put to reduce the barrassed criminal and administration of prosecutions, as far limitations to a law, criminal constitutional trial allowed, on the R. merits.” 12 O. L. The statutes p. relating selection of names for a from jury panel such list, were than enacted reasons rather for the benefit public accused any of crime or for person the benefit individual litigant. United States v. Greene Fed. (D. 695. The interest C.) in a in a is one people governmental capacity jury panel thing of an that individual accused crime be another. The may quite of a state and people interested in or trial of all hearing causes in their of an courts; interest individual such is arising restricted to some matter or cause to which particular he is a party in he some which concern. tois the interest of personal It every that citizen, the selection of a every taxpayer, facili qualified be tated in instance. It is to their every interest if that, a grand possible, jury panel be constituted that it contain so a sufficient number of grand jurors act in and qualified matter be dispose that sub every may mitted be so jury; petit jury constituted panel a sufficient be jurors petit may obtained therefrom sit in cause, criminal, civil and every come before the court for trial by jury at term which the is It was called. the lawmakers that thought by for a distribution providing names on the list the entire and the selection throughout county, of such names local officers the manner there would be prescribed, from greater which probability obtaining qualified jurors be could obtained various matters causes than the selec tion of then in method that the jurors by force; also, mode pre the statute tend to scribed would the burden of spread jury duty Ann. throughout Oas. (note 965), and preclude officer from jurors summoning juries, packing jurors selecting reference to matters and causes likely to submitted to particular *9 them for J. determination. O. 257. The however, p. legislature, an the of individual be affected his recognized rights might manner some substantial nonobservance of some of the prejudice the a of and so statutory provisions relating composition panel, that certain shall constitute it enumerated nonobservances provided for for a to the or aside an challenge setting indictment, grounds panel, whose timely objection the substantial individual, rights be affected to his such nonobservances. may Laws prejudice 10,791. further 10,639, 10,728, legislature safeguarded §§ the of of individual crime rights accused of litigants persons them the to challenge each member of affording right opportunity certain for include cause panel causes, enumerated every —which of general of a of well causes disqualification juror, disqualifica or of a in the cause in tion matter which the juror particular challenge is 10,641, 10,791 10,810. interposed. Comp. §§ — The basis or of a to a of a motion to set challenge grand jury panel, an indictment, is that has been or to the done omitted something of the substantial of rights challenging moving party. prejudice it is rule of such Hence, general (where grounds challenge not been motion have enumerated that “a mere legislature) in the with irregularity informality procedure regard drawing, which an indictment summoning impaneling jury, by it, found, is is not for unless shown is ground quashing prejudice have been occasioned substantial 31 C. rights accused.” J. p. has regulations
When legislature prescribed selection list, names'for such and the preparation further and has the nonobservances of enumerated panel; that shall constitute such regulations grounds aside an there is a setting grounds indictment, legislative nonobservanccs so these determination enumerated, alone, invasion of the constitute an substantial of the accused. It rights goes that the without with may saying legislature dispense performance act which was not essential instance. In first short, on limitations to restrict legislative grounds which only power assail the an accused has composition which re- grand jury, an indictment him, turned the limitations of constitu- against tion.
Where the legislature lias the manner of prescribed selecting jurors is, manner exclusive. And course, where addition thereto, other legislature enacted laws in what instances non- providing observance on the officers part charged duty selecting
737
shall
for
to the
challenge
constitute
panel,
and drawing jurors
ground
a motion to
or individual
of a
for
set
members,
jury,
ground
grand
an
it has
its intention that non
declared
indictment,
impliedly
observance in other
shall
constitute
for such
ground
particulars
set aside the
a motion to
indictment.
challenge,
Hence,
ground
follows
well-settled rule that
where
legislature
expressly
an
enumerated the
accused
make
objections
composition
of a
that has
an
returned
indictment
organization
grand
against
him, the
thus enumerated are exclusive. 28
J.
objection
C.
grounds
789 10
Pl. & Pr.
788,
586;
Enc.
17 Am. &
Enc.
;
Law
Eng.
pp.
p.
1112; State v.
19 N.
121
268,
N.
Ann.
1114,
D.
W.
Cas.
Longstreth,
D.
1912D,
State v.
20 S.
W.
1317;
98, 104 N.
Lamphere,
State
1038;
v.
32 D.
141 N. W.
21,
990;
S.
v.
Forgraves,
Sacramento
People
Butchers Protective Asso. 12 Cal.
107 Pac.
App. 471,
Kitts v.
712;
Ct. 3
462,
Cal.
Our has enacted laws legislature “the regulating system.” Among others, it has statutes enacted enumerating restricting to an individual juror Laws grounds challenge (Comp. 10,641); to the grotuids challenge Laws § 1913, § (Comp. and the 10,639), an grounds setting aside indictment (Comp. 1913, 10,728).
Section 10,641, enumerates seven different supra, for chal- grounds an The juror. individual first six subdivisions lenging relate his qualifications juror, general personal interest in or cause, matter and authorize particular challenge cases. last of the section authorizes a subdivision on the challenge ground exists on his “that state mind (the juror’s) part reference him or to either which will from case, party, prevent acting impartially without substantial rights of. the prejudice party challeng- (cid:127) ing-” . Laws 1913 10,639 Section provides: “A panel may interposed by either party one causes following only: or more was not drawn from the
1. That the number of ballots requisite or subdivision. box of the county *11 the
2. That was not notice drawing grand given. in was not had officers That presence desig- drawing the manner law.” or law, nated in prescribed Section Laws 1913 declares that an “indictment must 10,728 Comp. is be set aside in which the defendant his court arraigned, upon . . . motion, When is not indorsed and as found, it filed
(1) presented pre- this Code. Code of Criminal Procedure. scribed by When the names of the witnesses examined before the (2) grand are at the not inserted foot of the indictment or otherwise attached thereon. When a is to be the session of
(3) person permitted present during while the embraced in are under grand jury charges indictment in consideration, 10,666. Section except provided 10,666, pro- § that the state’s vides before attorney may appear grand jury. When the defendant had not been held to answer before the (4) on indictment, which have any ground would been finding good to either or to for challenge, any individual panel ground grand juror.” motion to
The indictment here is based the fourth quash That it 10,728 is, subdivision is supra. based ground as the had not inasmuch defendant been held to answer before find- he is indictment entitled to move to set it aside on any ing which have been a would for good ground ground challenge claimed it is And with 820 826 noncompliance panel. §§ the two constitutes a indicated, particulars supra, good ground is a and, hence, for a challenge panel to proper ground motion the indictment. set indicated are of
As we already that these opinion contentions well-founded. legislature not expressly prescribed which a shall be selected .grand jury mode and drawn. It has also nonobservance officers with the charged select- duty the members of such jury shall, instances, some ing to constitute or a challenge for a ground motion ground aside the indictment. The set nonobservances involved here do not
739 constitute either to an individual juror, grounds challenge nor constitute for a motion do they grounds panel; aside an v. 20 D. set indictment. State S. 104 N. 98, Lamphere, W. 28 Pl. 1038; C. T. 10 Enc. & Pr. Am. 788, 789; 586; 17 pp. p. & Eng. Enc. 19 1112; State v. N. D. 121 Law, p. Longstreth, 268, 21, N. W. Ann. Cas. State v. 32 S. D. 1912D, 1317; 1114, Forgraves, N. W. 141 Butcher’s 990; v. Sacramento Protective Asso. 12 People Cal. Pac. 712; Kitts v. Ct. 5 Cal. App. Superior App. 90 Pac. v. Collins, 60 212 Pac. 977; 701; Cal. People App. Cal. Jur. Section 826 74, 75. that fail expressly pp. supra, provides ure to thereof “shall be a any comply provisions ground either jury, petit, panel.” the instances enumerated in Avhichnonobservance Having expressly shall invalidate an deemed irregularity indictment, if, *12 the at and the time when, by accused and the challenged manner be must that the by law, it assumed prescribed legislature intended that in other not nonobservance should constitute a particulars for ground for a a motion to set aside an challenge, indictment. ground This where a is not a case of assumed to body act as a persons of without semblance legal On the jury authority. contrary, it- is that did act they with such is undisputed It authority. undisputed court, that the a having authority impanel grand jury, issued an order in Avith.the statute conformity a directing grand jury be were drawn from summoned; the jurors thereupon list of jury officers the the and summoned attend at a by term proper of that the so called for court; said as persons duty jurors were and as a grand sworn duly impaneled thereafter and charged by and the with their duties as that the such, court indictment involved drawn, so by body here was returned sworn im- summoned, and was contention that there There is no fraud or any paneled. corrup- in the selection, on the of anyone drawing tion of part impaneling a is no claim that single juror There was disqualified. jury. the grand that there of is Avasnonobservance certain sole complaint statutory- with the of officers names charged duty for by selecting regulations but as have county; noted, list of the we already the jury legisla- clear and that the has unmistakable by nonob- implication ture no an ground here constitutes of setting servance complained indictment. has non- because provided not follow that legislature does
It of the selection . of certain statutory provisions relating observance of a shall list, drawing the jury panel, or for set a motion to constitute ground officers with the duties of select- that the charged aside the indictment, list and liberty at such names, drawing ing preparing directions. The duty of any statutory primary disregard A a whole. state, officers is to people performance law obedience to of every of requires provision that- duty scrupulous has evi- their official conduct. The legislature clearly prescribing it regards all the directions given by denced an intention that names on preparation manner selecting shall officers be followed jury, public list and duties are The legislature these placed. whom upon respective “If board of county commissioners, township .super- the board said: of aldermen the board any board council visors, city, or fail select shall and fur- any wilfully neglect of trustees village as hereinbefore the cleric names provided, nish to persons person the court not than five nor so fined more than may less offending if shall fail to officer dollars; duties perform any fifty this shall article, him he be deemed of con- guilty imposed than fined court not less five nor court, may.,be tempt and if misconduct in office and dollars, gross more than fifty guilty of this article he be im- disregarding contempt provisions *13 ail than county j .longer thirty days,” in prisoned ’ 832. 1913, § to or tribunal officer grant power public duty Every imposes and the occasion when, its use if, use prescribed power thus court district granted duty arises. power implies of the court exercise over proper supervision on the part and, and matters incident thereto, panel, to use the conferred, to the end that the necessary, power if regulations be out. carried legislature by. prescribed has been from what It follows both certified questions be must are answered in the they .this court The trial' negative.
741 either tbe indictment upon to set aside court was correct refusing is remanded for further case the motion. The stated grounds law. conformable proceedings concur. JJ., Ch. J., Burr, Birdzell,
Burke, enunciated J. agree legal propositions I fully Nuessle, I the questions presented but doubt foregoing opinion, this See court. should certified determination such that they W. N. Co. of N. A. N. D. Union v. Insurance Ins. Agency 51 N. 199 N. W. D. cases Ullman v. cited; Campbell, M. FELDMAN, H. v. CHARLES CLARK, Respondent. Appellant, (224 167.) N. W.