Brewer v. State
| Decision Date | 23 December 1918 |
| Docket Number | 49 |
| Citation | 208 S.W. 290,137 Ark. 243 |
| Parties | BREWER v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Woodruff Circuit Court, Southern Division; J. M Jackson, Judge; affirmed.
Judgment affirmed.
Culbert L. Pearce, Harry M. Woods and Ira J. Mack, for appellant.
1. It is clear that the statutes regulating the selection of the grand jury were not complied with. If these statutes are mandatory, the case should be reversed with directions to quash the indictment. Kirby & Castle's Dig., § 2362 5227, 5233, 5234, 5246, 5247; 60 Ark. 589; 75 W.Va. 7; 89 Miss. 147; 10 Am. Cases, 963-967; 17 Am. & Eng. Enc. of L. (2 ed.), 1262. No cause is shown by the records or testimony why commissioners were not appointed, etc., and no orders were made and entered of record declaring any necessity for selecting a grand jury other than from a list furnished by jury commissioners and directing the sheriff to act, hence the State cannot rely on the power granted in Section 5253 Kirby & Castle's Digest.
If the statutes are directory merely, the case should still be reversed with directions to quash the indictment, if the appellant's rights were prejudiced by the illegal empanelment of the grand jury. That he was so prejudiced appears from the fact that the sheriff was unusually active in the prosecution.
2. The evidence does not sustain the verdict of conviction. Crews' testimony seeking to implicate appellant is inconsistent and not in the least credible. Moreover there is no corroboration. Kirby & Castle's Dig. § 2554. The testimony of the two witnesses is too indefinite and uncertain on the point of identification to amount to corroboration. 75 Ark. 540; 120 Ark. 148; 63 Ark. 310.
John D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.
1. The negative certificate of the clerk touching his failure to find any orders of record relating to the appointment of jury commissioners, etc., is not a proper part of the record, and is of no value. The order appearing in the transcript showing that the grand jurors were summoned by the sheriff is all that it is proper to consider with reference to the manner in which the grand jury were selected, and this order raises the presumption that the sheriff in summoning the grand jurors, did so in conformity with and obedience to the law. Kirby's Dig. § 4515; 12 R. C. L. 1026 § 13; 61 O. St. 444; 88 Va. 900.
If it be conceded that no jury commissioners were appointed, and that the grand jurors were not summoned from a list prepared by such commissioners, still that would be no ground for reversal. The statute is directory merely. Moreover it is not the function of a grand jury to try cases but merely to accuse. 10 Am. Ann. Cases, 964, note; 17 Nev. 272; 94 N.C. 1021; 12 Tex. 252; 12 Wash. 288; 23 R. I. 41; 130 Ia. 19; 16 Ark. 37; 21 Ark. 198; 60 Ark. 587. A judgment of conviction can be reversed only "for errors of law to the defendant's prejudice appearing upon the record." Kirby's Dig. § 2605.
2. The evidence is sufficient to sustain the verdict. The amount of corroboration, if there be any substantive corroboration whatever, is a question for the jury alone. 115 Ark. 480.
Trigger Brewer was tried before a jury and convicted of the crime of accessory before the fact of robbery and from the judgment of conviction has duly prosecuted an appeal to the court.
His first assignment of error is that the judgment should be reversed because the court refused to quash the indictment against him. Section 2279 of Kirby's Digest provides in substance that a motion to set aside the indictment can be made for substantial error in the summoning or formation of the grand jury. Under this section, the defendant moved to quash the indictment on the following grounds:
"That the grand jury which found the indictment herein was illegally chosen and constituted in that said grand jurors were not selected by commissioners appointed by the Woodruff Circuit Court for the Southern District; and further, that said jurors were chosen and selected by the sheriff of Woodruff County without any order from the circuit court for the Southern District of Woodruff County."
The record contains an order with reference to the formation of the grand jury as follows:
The record also contains the following certificate of the circuit clerk:
"I have examined all of the circuit court records in my office and fail to find any orders of record relating to the appointment of jury commissioners to select grand and petit jurors for the term of said court which convened in March, 1918, and at which time an indictment in the above cause of action was returned against the defendant, neither do I find that any list of grand jurors and alternate grand jurors were made and filed in open court by a jury commission, and the only order of record relating to the organization of said grand jury is fully set out at page 1 of said transcript, said order having been made and entered of record on the 5th day of March, 1918."
It is claimed by the counsel for the defendant that this state of the record affirmatively shows that the grand jury was not formed in the manner prescribed by law and that the court should have sustained his motion to set aside the indictment. The particular defect pointed out is that it does not appear that the circuit court appointed three jury commissioners as required by Section 4500 of Kirby's Digest and that the grand jurors were not selected by the jury commissioners as prescribed by Section 4506 of Kirby's Digest and that the list of grand jurors was not delivered to the judge in open court as provided by Section 4507 of Kirby's Digest. We do not agree with counsel in their contention. The usual prima facie presumption in favor of legal proceedings must be indulged in that the grand jury was legally organized. It is presumed that the circuit court appointed three jury commissioners as required by law and that they selected the grand jury from the electors of the county as prescribed by statute and delivered the list of grand jurors sealed up to the judge in open court. Bates v. State,60 Ark. 450, 30 S.W. 890; Wallis v. State, 54 Ark. 611, 16 S.W. 821, and Larillian, Admr. v. Lane & Co., 8 Ark. 372.
It is true that the record in the present case does not contain the orders of the court showing these facts, but as we have just seen the presumption is that the grand jury was organized in accordance with the requirements of law unless the contrary shall be made to appear affirmatively by the record. It may have been in the present case that the docket of the circuit judge showed that he had appointed jury commissioners and that he had selected the grand jury in the manner prescribed by the statute, but that these orders had not been entered of record. Even if it be assumed that the requirements of the statute with regard to the organization of the grand jury are mandatory, before we could review the action of the court in refusing to set aside the indictment, it should have been made to appear from the record by bill of exceptions or in some other mode provided by law that there had not been a substantial compliance with the statute in the formation of the grand jury.
Moreover under our system, there are two modes by which a grand jury may be lawfully selected. One is where they are selected pursuant to the provisions of the statute; and the other is where the circuit court causes them to be selected in the exercise of its inherent constitutional right. Wilburn v. State, 21 Ark. 198, and Straughan v. State, 16 Ark. 37. Hence, indulging the presumption that the grand jury was legally...
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