Bennett v. State

• Decision Date: 17 December 1923
• Docket Number: 53
• Citation: 257 S.W. 372,161 Ark. 496
• Parties: BENNETT v. STATE
• Court: Arkansas Supreme Court

257 S.W. 372

161 Ark. 496

BENNETT v. STATE

No. 53

Supreme Court of Arkansas

December 17, 1923

Appeal from Arkansas Circuit Court, Northern District; George W Clark, Judge; affirmed.

Judgment affirmed.

George M. Chapline and Joseph Morrison, for appellant.

J S. Utley, Attorney General, John L. Carter, Wm T. Hammock and Darden Moose, Assistants, for appellee.

WOOD J. MCCULLOCH, C. J., dissenting.

OPINION

WOOD, J.

This is an appeal from a judgment sentencing the appellant to nine months' imprisonment in the State Penitentiary upon a conviction of involuntary manslaughter. The testimony for the State tended to prove that on the 15th day of December, 1922, about three o'clock p. m., the appellant was operating and in control of an automobile on the public highway in Arkansas County; that he was drunk, and, while running the car at a speed of from twenty-five to thirty- five miles an hour, he came in contact with one Ed Miller, who was driving his team hitched to a wagon loaded with rice. Miller at the time was walking by the side of his team, and the collision threw him under his wagon, the wheels of which ran over his neck, causing his death. The testimony on behalf of the appellant tended to prove that he was unconscious at the time, as the result of voluntarily drinking what he thought was whiskey.

1. The appellant alleges three grounds for the reversal of the judgment. First, that the court erred in refusing to quash the indictment. The record shows that Joe Melton, the official stenographer of the grand jury of the Seventeenth Judicial Circuit, was in the grand jury room when the grand jury had under consideration the charge against appellant embraced in the present indictment. He testified that he took down the testimony of the witnesses. They had voted many times, and, when he saw they were going to vote the last time, he left the room and went down to get the prosecuting attorney to prepare the indictment. He requested the foreman of the jury that they should vote the indictment while he was absent. When he came back with the indictment, the foreman informed him that they had voted on it while he was away. The testimony of the foreman of the jury shows that the stenographer was absent when the final vote was taken, but they had voted many times possibly while he was present. Section 2996 of Crawford & Moses' Digest provides: "No person except the prosecuting attorney and the witnesses under examination are permitted to be present while the grand jury is examining a charge, and no person whatever shall be present while the grand jury is deliberating or voting on a charge."

Act No. 42 of the Acts of 1917, page 202, provides for a court stenographer for the grand juries of the Seventeenth Judicial District of the State of Arkansas. After describing his duties in detail in §§ 2 and 3, § 3 concludes with the following language: "And said stenographer's presence in the grand jury room shall be allowed at all times, and he shall be subject to the same penalties as are now or may hereafter be prescribed by law for divulging any of the secrets or proceedings of the grand juries." This court has declared in several cases, in effect, that, under the provisions of the general law ( § 2996, supra), the presence of any one in the grand jury room other than the jurors themselves, while they are deliberating or voting on a charge, would be ground for quashing the indictment on that charge. See Bennett v. State, 62 Ark. 516, 36 S.W. 947; Richards v. State, 108 Ark. 87, 157 S.W. 141; Tiner v. State, 109 Ark. 138, 158 S.W. 1087. In these cases this court, in effect, negatively at least, has held that it is within the power of the Legislature to prescribe that no one shall be present in the grand jury room during the time when the jurors are deliberating or voting on a verdict. It is equally within the constitutional power of the Legislature to declare that parties other than the grand jurors may be present while the jurors are deliberating or voting upon a charge. The whole subject is within the power of the Legislature, and there is no constitutional restraint upon such power. The wisdom and policy of such legislation therefore must prove itself to the Legislature. It is impossible to escape the conclusion that the language of special act No. 42 of the Acts of 1917 repeals, by necessary implication, the provision of the general law above quoted on the subject, as applicable to the Seventeenth Judicial District.

The presence of the stenographer in the grand jury room "at all times" necessarily excludes the idea that his presence cannot be allowed during the time the grand jury are deliberating or voting on a charge. The intent must be derived from the language used, and its meaning is too plain to admit of any other construction. The special act expressly repeals all laws or parts of laws in conflict therewith. Repeals by implication are not favored, and are never allowed unless there is an irreconcilable repugnancy between the later and the older statutes. Bank of Blytheville v. Willis, 76 Ark. 296, and cases there cited; Bartlett v. Willis, 147 Ark. 374, 227 S.W. 596. See also Bank of Blytheville v. State, 148 Ark. 504, 230 S.W. 550. Here there is a direct and irreconcilable conflict between the provisions of the general law and the provisions of the special act as applied to the Seventeenth Judicial District. So, the latter repeals the former, in so far as it applies to that district. The court therefore did not err in refusing to quash the indictment because of the presence of the stenographer while the grand jury was deliberating on the charge in the indictment.

2. Section 6837, Crawford & Moses' Digest, provides that, if the jury for the trial of any case cannot be obtained from the panel of petit jurors, bystanders shall be summoned, as the court may direct, to complete such jury. After the regular and special panels selected by the jury commissioners had been exhausted in the effort to impanel the trial jury, the court ordered the sheriff to go to McFall and Keaton Townships and summon twenty-five men to serve as jurors, and directed him "to get good men possessing the qualifications as petit jurors."

Appellant contends that this direction of the trial court was reversible error. This court has held that an accused person is not entitled to have any particular jurors try his case and that his rights are fully protected if he secures a panel summoned under the orders of the court, who, at the time they are called to answer as to their qualifications, are found to be duly qualified. McCain v. State, 132 Ark. 497, 201 S.W. 840. We have also held that it was not reversible error to refuse to direct the sheriff, at the instance of the accused, to summon as bystanders persons present in the courtroom while the trial jury is being formed. Pate v. State, 152 Ark. 553, 239 S.W. 27. In the last case, construing the statute (§ 3145) which requires the court to order the sheriff to summon bystanders to complete the jury after the regular panels have been exhausted, we held "that by 'bystanders' is meant electors possessing the qualifications of jurors, and in their selection the body of the county is open and available to the sheriff." To be sure, the same rules for the selection of bystanders as jurors are applicable to the State as well as to the defendant. But the direction of the court that the sheriff summon jurors from some particular township or townships is not in conflict with any provision of the law requiring an impartial jury to be selected. The test, after all, is as to whether the jurors selected anywhere in the county are found, on their voir dire, to possess the necessary qualifications as jurors. In the exigencies of trials the presiding judge must necessarily be vested with a wide discretion in the matter of impaneling the jury, after the panels provided by statute are exhausted, so as to expedite the business of the court. The...