Hudspeth v. State

• Citation: 9 S.W. 1
• Parties: HUDSPETH <I>v.</I> STATE.
• Decision Date: 30 June 1888
• Court: Supreme Court of Arkansas

Page 1

9 S.W. 1

HUDSPETH

v. STATE.

Supreme Court of Arkansas.

June 30, 1888.

Appeal from circuit court, Boone county; R. B. RUTHERFORD, Judge.

The provisions of the statutes relative to summoning and impaneling grand juries, which are cited in the following opinion, are found in Mansf. Dig. Ark. §§ 3976-4003.

W. F. Pace, for appellant. D. W. Jones, Atty. Gen., for appellee.

BATTLE, J.

The defendant, Hudspeth, was twice indicted in the Marion circuit court for murder in the first degree, committed by killing one George Watkins; was twice indicted for the same offense. The indictments were found by different grand juries, and at different terms of court. The second was found at the August term of the court in 1887. The defendant moved to set it aside for the following reasons: First. The grand jury which found it had not been selected, summoned, and impaneled in the manner prescribed by law. Second. The grand jury which returned it had not been selected and summoned by the sheriff; and that no list of the jurors composing said grand jury was on file in the office of the circuit court, showing that they were selected by jury commissioners appointed by the court, and that there was no record showing an order of the court appointing jury commissioners to select persons to serve as grand jurors at the term of the court at which the second indictment was found. Third. Because there was an indictment against him for the same offense, which had not been set aside, and this cause was submitted to the grand jury for its action while it was pending. Fourth. Because he was held to answer the charge preferred against him, and was confined in jail, at the time the grand jury which found the second indictment was impaneled; that William T. Dobbs, a member thereof, had been summoned to testify against him as to the offense for which he was indicted; and that, by reason of his imprisonment, he was deprived of his right to object to his competency to serve as a member of such jury. To sustain this motion, the defendant introduced the clerk of the court, who testified that, at the February term of the Marion circuit court, in the year 1887, jury commissioners were appointed by the court; that they selected the grand jurors and alternates to serve at the August term of the court in the same year, and made out a list of them, and sealed them up in an envelope, and filed it in open court; that on the 25th of July, 1887, he opened the envelope containing the lists, and made out copies thereof, and delivered them to the sheriff; that on the 10th of August following the records of Marion county, including the first indictment and the lists made out by the jury commissioners, were destroyed by fire; that enough of the records of the proceedings of the Marion circuit court remain to show that an order was made appointing said jury commissioners, and that they had acted; that he examined the copies he made carefully, and that he believed the lists returned into court to be exact copies of the originals. From this we infer that the sheriff returned the copies delivered to him, served, after the originals were burnt, and that from these copies the grand jury of the August term were selected. The fourth reason assigned in the motion was admitted by the state to be true. But it appears that the fact that the first indictment and record thereof were burnt was unknown to the court at the time the grand jury was impaneled. After it was discovered, the defendant was brought into court, and appeared by his attorney; and the court ordered that the charge against him be submitted to the grand jury then impaneled for their action. It does not appear that he demanded that the grand jury be brought into court in order that he might object to the competency of any member thereof to investigate and act upon the charge against him, but simply excepted to the order of submission. No objection was made to any member until after the second indictment was found and filed in court. The court refused to sustain the motion, and the defendant was tried on the second indictment, convicted of murder in the first degree, and condemned to death.

It is now contended that the motion should have been sustained because the grand jury which returned the indictment into court was illegally impaneled. It is contended that, the original lists of grand jurors and alternates selected by the jury commissioners having been destroyed by fire, it was unlawful to select the members of the grand jury from copies of such lists. Is this true? The statutes of this state make it the duty of the circuit courts at their several terms, to appoint three jury commissioners, whose duty it shall be to select from the electors of the county 16 persons to serve at the next term of the court as grand jurors, and such other number of electors, not exceeding 9, as the court may direct, for alternate grand jurors, and to make separate lists of the same, and to specify in one list the names of the 16 persons selected as grand jurors, and to certify it as the list of grand jurors; to specify in the other list the names of the alternate grand jurors, and certify it as the list of alternates; and to inclose and seal these lists, and indorse them, "Lists of grand jurors," designating for what term of the court they were to serve, and to sign the indorsement, and deliver the lists to the judge in open court. Within 30 days before the next term the clerk is required to open the envelope, and make a fair copy of the list of grand jurors and a fair copy of the list of the alternates, and give the same to the sheriff, who is required to summon the persons on the lists by giving to each of them notice to attend on the first day of the next term to serve as grand jurors. From these lists it is made the duty of the court to select the grand jury. If there shall not be a sufficient number of competent grand jurors and alternates present, and not excused, to form a grand jury, the court is authorized to compel the attendance of the absentees, or order by-standers to be...