Mabry v. State

• Decision Date: 09 June 1888
• Citation: 8 S.W. 823,50 Ark. 492
• Parties: MABRY v. STATE
• Court: Arkansas Supreme Court

8 S.W. 823

50 Ark. 492

MABRY v. STATE

Supreme Court of Arkansas

June 9, 1888

APPEAL from Faulkner Circuit Court, J. W. MARTIN, Judge.

Judgment affirmed.

Bruce & Bolton, W. S. McCain and C. W. Cox, for appellant.

1. The order for a special venire, made in the absence of defendant was a substantive act, which in a felony case, is ground for reversal. 24 Ark. 620; 44 Id., 331; 24 Id., 628.

2. The panel in this case consisted of 18 jurors only. Defendant was entitled to a full panel of 24. Mansf. Dig., secs. 4004-8; 14 Iowa 220; 9 P. Dupont v. McAdow, January 25, 1886; 2 Id., 21; 13 Wall, 434; 32 Kan. 477; 9 Johns., 260; 73 Ill 246; 67 Ill. 154; 5 Blackf. (Ind.) 120; 3 Ib., 37.

3. The jury were not instructed as to the different grades of homicide. Bish. Cr. Pro., sec. 980; 41 Tex. 306.

4. The court erred in overruling the motion for new trial, on the ground of the disqualification of one of the jury, who was biased.

Dan W Jones, for appellee.

No error was committed in ordering the special venire, or selecting the jury. 24 Ark. 620, 628, is not applicable to present practice. Compare secs. 155-6, ch. 52, Gould's Dig., with secs. 2219, 2222 and 3984, Mansf. Dig.

Appellant could not complain if more jurors than the law requires were summoned. 5 Ark. 444, 453. He was not entitled to any particular persons upon the jury. 29 Ark. 17, 22; 35 Ib., 639, 643.

So that a fair and impartial trial, by a fair and impartial jury, was accorded him, he cannot have been prejudiced even if the court had proceeded irregularly in obtaining such a jury. 9 Tex. Ct. App., 412, 417; 8 Ib., 620; Ib., 626; Ib., 659, 669; 18 Iowa 140; 11 Nev. 98, 108.

OPINION

COCKRILL, C. J.

The appellant was indicted and tried for murder in the second degree, was convicted and sentenced to five years' imprisonment in the penitentiary. Several days before the cause was set for trial, the judge, at the request of the state's attorney, ordered the sheriff to summon thirty tales jurors to be present on the day of trial ready for service as necessity might require. The defendant was absent on bail when the order was made. His counsel was present and raised no objection. The bill of exceptions assigns, as a reason for making the order, the belief that the regular panel would be exhausted without obtaining a jury and that delay would be avoided by the course pursued.

When the cause was reached for trial, the defendant filed a motion to set aside the array of talesman brought in by the sheriff, assigning as grounds for his motion, (1) that the order directing the jurors to be summoned was made prematurely; (2) that it was made when defendant was not present; and (3) that the sheriff who executed the order was biased against the prisoner.

The court heard the testimony on the questions presented and overruled the motion.

The regular panel, upon being called, was found to consist of 18 jurors instead of 24 as the statute requires. The court directed the sheriff to summon six jurors from the bystanders to complete the panel, and, over defendant's objection, he was permitted to call them from the list of talesmen already returned by him. The names of the jurors thus obtained were put into the jury box with the 18 of the regular panel, and the parties proceeded to impanel a jury. Six jurors were obtained from the 24--three from the original list and three from the recruits brought in by the sheriff, all being of the regular panel as the record recites. As jurors were thereafter needed to complete the trial jury, the sheriff was directed to summon bystanders--"the court each time," according to the bill of exceptions, "over the defendant's objection permitting the sheriff to call from his list containing the names of the special venire, names to complete the panel to try this case," until a jury was obtained, exceptions being saved in every instance.

It is urged that the jury was illegally impanelled, and that the judgment should be reversed for that reason.

The record shows that the defendant was accorded the statutory right of drawing his jurors from the regular panel assembled for the term. It had become depleted and was refilled, before the trial, by the sheriff under the direction of the court in the manner pointed out by the statute. Mansf. Dig.; sec. 4008. The record does not show that the jurors thus summoned were sworn as petit jurors for the term, but that is immaterial to the prisoner as the oath administered to the panel binds the jurors in civil cases only. Mansf. Dig., sec. 4007. In every criminal prosecution the jury is specially sworn as provided in sec. 2248, Mansf. Digest, even though composed of the regular panel Chiles v. State, 45 Ark. 143. They were properly sworn in this case. The defendant's exceptions to the jury go only to this, viz: that nine jurors were taken from the list returned by the sheriff in obedience to the order of the court above set forth. The first objection is that the order was prematurely made.

The supreme court of Louisiana, in disposing of an objection to the practice of bringing in talesmen before it is known that they will be required to complete the jury, say: "The complaint of the accused is not that jurymen de talibus were imposed on him before the regular panel was exhausted. Had the jury been completed from the regular panel, the order would have had no effect. As the panel was exhausted, the order simply served to secure the presence of bystanders from whom the jury was lawfully completed. We think the action of the court was proper under the circumstances and fail to perceive any injury or abridgment of his legal rights resulting to the defendant." State v. Moncla, 39 La.Ann. 868, 2 So. 814.

It is necessary that the trial court should be possessed of a large measure of discretion in such matters in order that business may be dispatched expeditiously, and we will not interfere with its action where it is not in violation of some mandatory provision of the law unless it is shown to operate to the prejudice of the party complaining. The case of Dupont v. McAdow, (Montana), 6 Mont. 226, 9 P. 925, relied upon by the appellant is not in point. There, bystanders were imposed upon the defendant as jurors when the statute gave him the right to draw a jury from a reserved force of jurors previously selected by the jury commissioners.

But it is argued that the order by means of which nine jurors were brought before the court is erroneous because it was made in the defendant's absence.

Before the adoption of the Code of Procedure, the statute required that there should be ordered for the trial of each criminal cause a number of qualified jurors equal to the number of peremptory challenges and twelve in addition. Gould's Digest. Ch. 52, sec. 165. The order for the venire was regarded as a material step in the progress of the trial, and it was adjudged to be error to make the order when the defendant was absent. Brown v. State, 24 Ark. 620; Osborn v. State, 24 Ark. 629. But the practice of summoning a special jury for each case has been abolished. A panel of twenty-four jurors selected by jury commissioners before the term of court at which they are to serve, is provided for the trial of all causes, criminal and civil alike. Mansf. Dig., secs. 4004-5. The statute does not contemplate that a defendant shall be present when the commissioners are selected by the court or when the jurors are selected by the commissioners. The offence may be committed and the indictment found after they have performed their duties. If the commissioners fail to act, or if the panel they have selected becomes incomplete for any cause, the sheriff, or if he be disqualified, some other person designated in his place, under the direction of the court, performs the duty of selecting or completing the panel, Ib., secs. 4003, 4008. The court's order in such a case cannot be regarded as a step in the trial of any particular cause such as entitles a defendant under indictment for a felony to demand the right to be present. The order is the first step in the organization of an arm of the court upon which it must lean in the trial of all criminal causes at that term. A defendant could as well claim the right to be present at the election of the sheriff who is to summon the jury, or the judge who is to try the cause, as at the order for the panel.

The causes of exception to the decision of the court upon challenges to the panel, are limited by statute, and no cause for challenge can be assigned as error here which does not deny the party complaining the exercise of a natural or constitutional right. Mansf. Dig., sec. 2305; People v. Southwell, 46 Cal. 141; People v. Ah Chung, 54 Cal. 398; People v. Darr, 61 Cal. 554; People v. Welch, 49 Cal. 174; Palmore v. State, 29 Ark. 248; Wallace v. State, 28 Ark. 531.

The right to be present when the order to summon a part or the whole of a panel is made, is not proof against legislative action, and its denial is not the subject of exception. Authorities supra. The defendant cannot therefore be heard to complain that the order to summon jurors to complete the term jury was made in his absence. The presence of a defendant when an order is made directing the summoning of a part of the jury to try his cause is not more important than his presence when an order is made which serves only to secure the presence of bystanders, from whom jurymen may be called under the direction of the court in his presence. Three of the jurors who acted in this cause were taken from the bystanders who are now objected to. But as they were enlisted in the regular panel, the objection that the order for their presence was made in the defendant's absence fails. It would be a strange anomaly that the statute should...