Barton v. State

• Decision Date: 06 January 1882
• Citation: 11 N.W. 323,12 Neb. 260
• Parties: RICHARD BARTON, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

11 N.W. 323

12 Neb. 260

RICHARD BARTON, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 6, 1882

ERROR to the district court for Lancaster county. Tried below before POUND, J. The opinion states the case.

REVERSED AND REMANDED.

Galey & Abbott, for plaintiff in error, cited Burley v. The State, 1 Neb. 396. Preuit v. State, 5 Neb. 375. McElvoy v. State, 9 Neb. 157. Clark v. Saline County, 9 Neb. 516.

C. J Dilworth, Attorney General, for the State.

1. The plea in abatement does not state that sec. 664 was not complied with; it only claims the county commissioners did not select the names, as required by law. This is only one of the ways in which a grand jury may be selected, but it is not the only way, and the proceedings of a grand jury selected by the sheriff are just as lawful as though the names had first been selected by the commissioners; in fact the law requires this to be done when the commissioners fail to make the selection.

2. The cases cited by the plaintiff in error do not apply to this case. Burley v. The State, and Preuit v. The State, were cases where the record showed that the court made the selection, and not the sheriff. There is nothing of that kind claimed in this case. The case of McElvoy was when the judge in vacation, ordered the sheriff to summon the jury without giving the commissioners time or opportunity to make the selection. The case of Clark v. Saline County prescribes the manner in which the commissioners shall select the names, when in this case it is stated that the commissioners refused to make the selection. It then follows, therefore, that the jury must have been selected by order of the court by the sheriff, and it was not claimed that this was not done.

OPINION

COBB, J.

The plaintiff in error was indicted and convicted at the June term, 1880, of the district court of Lancaster county, for the larceny of a horse. He presented a plea in abatement to the indictment, the substance of which is that the grand jury, which found the indictment, was not properly selected, or more correctly speaking, that in the selection of the sixty names, from which the grand jurors were drawn, they were not properly distributed among the several precincts of the county, in proportion to the number of persons residing in said precincts respectively, qualified by law to serve as grand and petit jurors. The plea was demurred to by the district attorney, and the demurrer sustained.

In the brief of the defendant in error it is tacitly admitted that the facts set up in and by the plea are sufficient, but it is contended that the plea is bad in not negativing every possible method by which a legal grand jury could have been obtained.

The following is a copy of the plea: "* * * That the said indictment, as it is exhibited against him, was not found or presented to any court having jurisdiction of the offense therein charged by a regularly appointed and constituted grand jury, under the laws of the state of Nebraska, as appears from the record of said county commissioners of said county, and the record of said court in this, to-wit: 1. The county commissioners of said county of Lancaster, in which the February term, A. D., 1880, of the district court, of the second judicial district of Nebraska, in and for said county, was appointed and directed to be held by the judge thereof, wholly failed and refused to meet, nor did any two of said county commissioners meet together at the time, before said term required by law, or at any other time, and then and there select sixty names, or any other number of names of persons possessing the qualifications of jurors, as prescribed in section six hundred and fifty-seven of the General Statutes of Nebraska, and, as nearly as might be, a proportional number from each precinct in said county, from which number so listed, the clerk, sheriff, or other officer of said court, might select, in the manner provided by law, the names of sixteen persons, to serve at the said term of the said court as grand jurors. 2. The persons who were selected by the clerk and sheriff of said county to serve as grand jurors at the said term of the said court, were not chosen from any list selected by the county commissioners of said county, or selected by any two of said commissioners, as provided by law. 3. The county commissioners of said county of Lancaster utterly failed and refused to select the names of sixty persons, or any other number, and furnish a list thereof to the clerk of said court, from which the names of persons to serve as grand jurors, at said term, in said court, might be drawn as provided by law. 4. The list of the names of persons, from which the clerk and sheriff of said court drew the names of sixteen persons to serve as grand jurors at the said term of the said court, were not selected as nearly as might be, proportionately, from each precinct in said county, but, on the contrary, this defendant avers the truth to be, that in one of the precincts of said county, to-wit: North Bluff precinct there did not appear to be, nor was not on said list of sixty persons, drawn from as aforesaid by the clerk and sheriff aforesaid, a single name of any person...