McKinney v. State

• Citation: 30 P. 293,3 Wyo. 719
• Parties: McKINNEY v. STATE
• Decision Date: 20 June 1892
• Court: United States State Supreme Court of Wyoming

30 P. 293

3 Wyo. 719

McKINNEY v. STATE

Supreme Court of Wyoming

June 20, 1892

Error to district court, Laramie county; RICHARD H. SCOTT, Judge.

Kinch McKinney was convicted of grand larceny, and brings error. Affirmed.

Judgment affirmed.

Henry St. Rayner, for plaintiff in error.

Charles N. Potter, Atty. Gen. for the State.

GROESBECK C. J. CONAWAY and MERRELL, JJ., concur.

OPINION

GROESBECK, C. J.

The plaintiff in error was convicted in the district court of Laramie county, Wyo., on the 22d day of January, 1891, of the crime of grand larceny. He was indicted for feloniously stealing, taking, carrying away, leading away, and driving away, 8 head of neat cattle, of the property of the Swan Land & Cattle Company, and 18 head of neat cattle, of the property of the Laramie River Cattle Company, in the said county of Laramie, each of the value of $ 15. He was sentenced by the court to imprisonment in the penitentiary for the term of 8 years. The petition in error and transcript containing the journal entries and the bill of exceptions were filed in this court September 3, 1891, and the cause was heard and submitted at the present term. Under the rules of this court criminal causes have the precedence over other causes on the docket, and this cause is therefore determined in advance of other causes submitted. The assignments of error are disposed of hereafter in what seems to be their proper order.

1. The motion for a new trial was not filed within the statutory time, as it was filed five days after the verdict of the jury was rendered, instead of within three days thereafter, as required by the statute, which reads as follows: "An application for a new trial shall be by motion upon written grounds, which shall be filed at the term the verdict is rendered, and except for the cause of newly-discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be filed within three days after the verdict was rendered, unless additional time be granted by the court upon good cause shown." Rev. St. Wyo. § 3348, as amended by chapter 73, Sess. Laws 1890. The motion does not seek a new trial on the ground of newly-discovered evidence, but upon error of law occurring at the trial, nor does any reason appear, either in the motion or in the record why this motion was not seasonably filed, nor was there any application made to the trial court for additional time in which to file it. Even when additional time is asked to file such a motion the applicant must show reasonable grounds for the delay, and the necessity for the delay, and, further, that substantial reasons exist, in the interests of justice, requiring it. Bulliner v. People, 95 Ill. 394. No showing was made and no excuse was given for the delay. The rule is too firmly established to be shaken now, that the motion for a new trial must be made within the time fixed by the statute, or all errors occurring at the trial are waived. A trial court may overrule the motion for the sole reason that it was not filed in time, and this may have been the ground upon which the motion was overruled. No reason for the denial of the motion is shown by the record, but this failure to comply with the imperative terms of the statute would certainly be ground for overruling it. City of Evansville v. Martin, 103 Ind. 206, 2 N.E. 596; Kent v. Lawson, 12 Ind. 675; Bradshaw v. State, 19 Neb. 644, 28 N.W. 323; Ex parte Holmes, 21 Neb. 324, 32 N.W. 69; City of Osborne v. Hamilton, 29 Kan. 1; Hover v. Tenney, 27 Kan. 133; Lucas v. Sturr, 21 Kan. 480; Nesbit v. Hines, 17 Kan. 316; Bartlett v. Feeney, 11 Kan. 593; Odell v. Sargent, 3 Kan. 80. We cannot, therefore, inquire into any matters occurring at the trial, because this motion was filed too late.

2. We agree with counsel for plaintiff in error that we should consider the motion to quash the entire panel of 24 jurors summoned to serve at the term. It was interposed before the trial began, and could not have been considered by the court during the trial or after it. It was unnecessarily embodied in the motion for a new trial, and must be considered independently of it, as the exception was taken at the proper time, and in due form, to the action of the trial court in disallowing or overruling the motion to quash the panel.

3. However, we cannot consider the facts set forth in the affidavit in support of the challenge to the array, purporting to be copies of the orders of the court below in relation to the dismissal and discharge of the regular panel of the petit jurors summoned for the term. The matters complained of in this respect, and the ordering and summoning of a new panel of petit jurors on an open venire, are presented only by this affidavit of the plaintiff in error. It purports to set out journal entries of the court, and these are authenticated only by the affidavit. The journal entries should have been certified by the clerk, or in case these were not full and explicit the facts should have been exemplified in the bill of exceptions certified by the trial judge or the court. We cannot substitute the authentication of the record by a party to a suit for the proper authentication of the clerk, judge, or court. State v. Shaw, 5 La. Ann. 342; State v. Bruington, 22 La. Ann. 9; Ripley v. Coolidge, 1 Minor 11; State v. Millain, 3 Nev. 409. As there is no properly authenticated record of the court, showing its action in discharging the regular panel of the petit jury, and ordering a new one for service during the term, we must disregard the assignments of error predicated thereon.

4. In the challenge to the array of the petit jury objection is also made to the jury because it was exclusively composed of male persons. It is urged that the constitution of this state requires that women, equally with men, shall be subject and eligible to jury duty, where they possess the same qualifications as men. Section 1 of article 6 of the constitution provides that "the rights of citizens of the state of Wyoming to vote and hold office shall not be abridged or denied on account of sex. Both male and female citizens of this state shall equally enjoy all civil political, and religious rights and privileges." Section 9 of article 1, (bill of rights,) providing that the right of trial by jury shall "remain" inviolate in criminal cases, also provides that a jury in civil cases in all courts, or in criminal cases in courts not of record, may consist of less than 12 men, (not persons,) as may be prescribed by law. These provisions are borrowed from other constitutions, and were intended to maintain sacred and safe from legislative control the right of trial by jury already guarantied. The provision relating to grand juries, found in the same section, is that such bodies may consist of 12 "men," 9 of whom concurring may find an indictment, with power in the legislature to alter, regulate, or abolish the grand jury system. It has been the settled law of this jurisdiction, ever since its organization, that male electors only were qualified to serve as jurors, although for that period women have been entitled to vote and hold office as well as men. At one time it was held by the nisi prius courts of the territory of Wyoming that women were competent jurors, but that ruling was speedily overturned by the same courts. The question was never passed upon by the supreme court, either state or territorial. We have not much doubt that women were not eligible as jurors under the territorial statutes, as the right to vote and hold office does not include the right, if right it may be termed, to serve as a juror. It is only when the legislature, by an unreasonable exercise of its functions in prescribing the qualifications of jurors, impairs the right of trial by jury, that its acts are unconstitutional. The constitutional provision that "the right of trial by jury shall remain inviolate" means that the right of jury trial shall not be destroyed or annulled by legislation, nor so hampered or restricted as to make the provision a nullity. "It would be obviously incompetent for the legislature to impose so many or such disqualifications as would restrict the number eligible to jury duty to a very small or select class; for this would substantially impair the right of trial by jury as it existed at the common law, --a thing which the foregoing provisions were designed to inhibit. Subject to this general reservation the enumeration of causes of disqualification has generally been left to the legislature." Thomp. & M. Juries, § 24. The difficulty arises in the construction and force of the last clause of section 1 of article 6, that "both male and female citizens of this state shall equally enjoy all civil, political, and religious rights and privileges." Is jury service a right or privilege? The statute now in force restricts the qualifications to male citizens able to read and write the English language, having the qualifications of electors, and being of sound mind and discretion, and not being judges or clerks of any of the courts, sheriffs, coroners, jailers, or subject to any bodily infirmity disqualifying them for service as jurors, and not having been convicted of a felony. The statute exempts persons over 60 years of age, ministers of the gospel, county officers, licensed attorneys, practicing physicians, dentists, registered pharmacists, officers and employes of the United States government, firemen and militiamen in active service. Sess. Laws Wyo. 1890, c. 35. This act was passed prior to the admission of the state into the Union, and has not been altered or repealed. No provision has been made, then, by statute, for the admission of female electors to the jury box, unless the...