Berry v. Trunk
| Decision Date | 07 December 1914 |
| Citation | 172 S.W. 629,185 Mo.App. 495 |
| Parties | SILAS H. BERRY, Respondent, v. BENJAMIN H. TRUNK, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Wm. D. Rusk, Judge.
Judgment reversed and cause remanded.
O. C Mosman and Vinton Pike for appellant.
The court erred in overruling defendant's challenge to the array of jurors. State v. Austin, 183 Mo. 478; Sess Acts 1911, p. 308; Johnson v. State, 102 Ala. 1, 16 So. 99; Brazier v. State, 44 Ala. 387; Wilkins v. State, 112 Ala. 55; People v. Davis, 73 Cal 355; Borrelli v. People, 164 Ill. 549; Jones v. State, 3 Blackf. 37; Mitchell v. Likens, 3 Id. 258.
W. B. Norris, Frank H. Miller and Robert C. Bell for respondent.
It has always been held in this State, and generally throughout the States of the country, that the statutory method of drawing, summoning and empaneling jurors is directory, and that a substantial compliance with the statutes is all that is necessary. State v. Pitts, 58 Mo. 556; State v. Breen, 59 Mo. 413; State v. Gleason, 88 Mo. 582; State v. Mathews, 88 Mo. 121; State v. Jackson, 167 Mo. 291; State v. May, 172 Mo. 630; Reeves v. State, 10 So. 901; State v. Daniels, 46 S.E. 743; State v. Wilson, 144 N.W. 47; Ullman v. State, 103 N.W. 6; Young v. State, 58 So. 188.
--Plaintiff, seated in his wagon drawn by two horses, was driving along a public road, when defendant approached from the rear in an automobile at high speed and much noise. Plaintiff's horses became frightened and ran away, throwing him out and inflicting severe injury. He brought this action for damages and recovered judgment in the trial court for six thousand dollars.
At the opening of the trial, in proper time, defendant filed a motion to discharge the jury panel which the court overruled and due exception was taken. The ground of the motion is that the panel had not been drawn and summoned as required by law, in that, among other things, no list of the panel was made in the order in which the jury men were drawn from the wheel; nor was any list at all made by the clerk of the board.
By the laws of 1911, page 305, the Legislature provided a Jury Commission Board in counties having between sixty and two hundred thousand inhabitants; and Buchanan county is one of that class. Section 2 of the act constituted the judge or judges of the circuit court and the judge of the court having jurisdiction in felony cases, as such board. By section 3 of said act it is made the duty of the board to cause to be made "a complete list as near as they can, alphabetically arranged, of all the qualified jurors in the county and their residences." It will be seen by reference to the statute, that this is a complete general list of jurors, and that under the terms of sections 14 and 9 it is corrected from time to time as information may come to the board; and by section 15, it is revised every three months by adding names of those who become qualified.
But there is also a special list of each panel selected for service. Under the provisions of sections 5 and 6, these special lists are made up from the names on the cards drawn (in the presence of the judge) from the wheel by "the clerk of said board, so situated as to be unable to see the names on such card." The statute immediately following this, continues: 'a list of the names, so drawn, shall be made and preserved by the clerk of the board and a certified copy of the same shall by said clerk be delivered to the clerk of the court for which the jurors were drawn." And, "In the event of sickness, absence or disability of the clerk of the board, the judge so ordering the jury shall draw and certify the same as herein provided."
When the panel in controversy was selected by drawing the cards from the wheel, the clerk of the board (who was also clerk of the trial court) took and delivered them to his deputy clerk of that court, and he certified a list of the names on those cards to the trial court, as the panel. We think his act entirely without the provisions of the law and being so, was, of course, void.
The statute (sec. 2) puts the clerkship of the board at the disposal of the board. The clerk of the court is clerk of the board, unless the board shall select one of his deputies to be the clerk. In no instance is there authority for a deputy clerk of the court to act for the board unless he has been named by the board as clerk of the board. There is no deputy authorized by the statute in the absence of appointment by the board. This is manifest from the latter part of section 5, above noted, providing that in the absence of the clerk of the board the judge shall certify the panel to the trial court. There is good reason for confining authority to one designated person to do the various acts connected with the listing of inhabitants of the county for jury service; some certain one to charge with the care, supervision and correction of such lists; and with the drawing from the wheel and making a list of those drawn, etc. If it were divided up among several deputies, indiscriminately serving a chief clerk, with first one, then another performing service, inextricable confusion, with numberless mistakes, would follow; to say nothing of shifting responsibility and opportunities for fraud. It was the duty of the clerk of the board, and not the deputy clerk of the court to certify the list of the panel to the trial court. The latter's oath of office did not apply to drawing or certifying a jury panel. [Gott v. Brigham, 45 Mich. 424, 429, 8 N.W. 41.] The certificate having been made by a deputy clerk of the court was not only made by an officer not appointed thereto by the law, but was made by one who necessarily did not know the facts to which he certified.
Plaintiff insists that in providing the machinery for the selection of juries, the law is directory. Ordinarily the mode of summoning juries is held to be directory, but even this does not authorize the substitution of an officer not designated by the law for one who is so designated to perform the duty of summoning a jury. [...
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