Meyers v. Second Judicial Dist. Court, In and for Weber County

• Decision Date: 05 March 1945
• Docket Number: 6771
• Court: Utah Supreme Court
• Parties: MEYERS et al. v. SECOND JUDICIAL DIST. COURT, IN AND FOR WEBER COUNTY, et al

156 P.2d 711

108 Utah 32

MEYERS et al. v. SECOND JUDICIAL DIST. COURT, IN AND FOR WEBER COUNTY, et al

No. 6771

Supreme Court of Utah

March 5, 1945

Alternative writ heretofore issued recalled.

J A. Howell, of Ogden, H. L. Mulliner, of Salt Lake City Arthur Woolley, Ira A. Huggins, and David L. Stine, all of Ogden, Willard Hanson and Stewart M. Hanson, both of Salt Lake City, and Royal J. Douglas, of Ogden, for plaintiffs.

Grover A. Giles, Atty. Gen., and Zar E. Hayes, Asst Atty. Gen., for defendants.

Wolfe, Justice. McDonough and Wade, JJ., concur. Turner, J., concurs in the result. Larson, Chief Justice (concurring specially).

OPINION

Wolfe, Justice.

Original proceeding upon petition for writ of prohibition. The petitioners seek to restrain the defendants from proceeding with the trial of the petitioners on indictments charging petitioners with the crime of criminal conspiracy. The contention is that the defendant court has no jurisdiction to proceed with said trial, that it nevertheless will proceed unless restrained, and that the petitioners will suffer irreparable injury unless the writ issues.

The petitioners contend that the challenged indictment was not returned by a grand jury legally constituted in that: (a) the order made for the calling of the grand jury was made and signed in chambers by the judges of the District Court of Weber County and that such purported order is the act of the judges as distinguished from an order of the court duly and regularly made in session; (b) that the clerk and attending officers did not certify the list of names drawn for said grand jury to the Sheriff of Weber County; and (c) that persons other than the grand jury and witnesses and the district attorney, were present during the sessions and deliberations of the grand jury and there is reasonable cause to believe that the petitioners were prejudiced thereby.

Upon the allegations of a petition setting forth the foregoing matters, an alternative writ issued. In answer thereto the defendant judge admitted that the order calling the grand jury which returned the indictment was made and signed in chambers; that though both judges of the Second Judicial District held regular sessions on date of the making of said order, no entry was made in the minutes of the regular proceedings regarding the calling of the grand jury. The allegation that the list of the grand jurors drawn was not certified by the clerk and attending officers to the Sheriff of Weber County was denied by the answer. However, the evidence adduced at the hearing on motions to quash the indictment, which evidence was by order of this court certified to this court, discloses that the sheriff and the deputy to whom the list of jurors was handed both testified that the list delivered was not certified. The answer also admitted that persons other than the district attorney, grand jurors and witnesses, to wit, Joseph E. Evans, special assistant attorney general, and Zar E. Hayes, assistant attorney general, were present during the examination of witnesses but denied that they were present during any of the deliberations of the grand jury or during the expression of votes upon any matters before the grand jury.

There is no merit to the contention that the order calling the grand jury was invalid because signed by a judge in chambers. There is no statutory or constitutional provision which requires such an order to be signed by the court sitting in regular session. Section 48-0-21, U. C. A. 1943, upon which the petitioners rely to support their contention that the order must be entered by the court in regular session does not so provide. The section purports to govern the procedure for drawing the names of persons to sit on the grand jury. The fact that the section provides that the clerk shall draw the names of jurors to sit at the term of court at which a grand jury "be ordered by the court" is not controlling. The words "court" and "judge" are often used interchangeably. Sartin v. Snell, 87 Kan. 485, 125 P. 47, Ann. Cas. 1913E, 384; United States v. McCabe, 1 Cir., 129 F. 708, 64 C.C.A. 236; Newby v. Bacon, 58 Cal.App. 337, 208 P. 1005. The logical place for a provision governing the procedure to be followed by the judge or court in calling a grand jury would be in Chapter 18, Title 105, which expressly purports to govern the procedure for the formation of a grand jury. Neither this chapter nor the Constitution requires that an order calling a grand jury be entered by a court sitting in regular session. In the absence of such an express requirement we hold that under Section 20-3-16, U. C. A. 1943, the order calling a grand jury could properly be entered in chambers.

We do not deem it necessary to determine whether it must be the judge as distinguished from the court who entered the order in chambers. Judges in entering such orders need not go through any particular mental process before performing each function to decide whether they act as judges or as the court. Having the power to make the order calling the grand jury and to make it in chambers, they will be presumed to have performed the act in the correct capacity. It would be an absurdity to hold otherwise.

The second contention that the grand jury was not legally constituted because of the failure of the clerk and other attending officers, in accordance with provisions of Sec. 48-0-22(8), to certify the list of names drawn for the grand jury to the sheriff of Weber County, is also untenable. Sec. 48-0-22(8) provides:

"Separate lists of the names of the persons so drawn for trial jurors * * *, with their places of residence, shall be made and certified by the clerk and attending officers and delivered to the sheriff of the county."

The question as to whether failure to comply with the requirements of this provision would when timely raised be fatal to the legality of the jury drawn depends upon whether the section is mandatory or merely directory. As noted in 24 Am. Jur., p. 45, Sec. 19,

"Statutory provisions regulating the manner of selecting or drawing a grand jury are either mandatory or directory, depending more on their purpose than their language. Those which relate to the number and qualifications of jurors, or which are designed to secure impartiality or freedom from unfair influences, are ordinarily deemed to be mandatory; those which prescribe mere details as to the manner or selection or drawing are usually regarded as directory."

In State v. Distefano, 70 Utah 586, 262 P. 113, 114, we noted that "It is quite generally held that statutory provisions regarding the drawing and summoning of juries is directory and not mandatory." Citing authorities.

There is, in the instant case, no showing of prejudice to the petitioners from the failure of the clerk to follow specifically the direction of the statute. The persons required by statute to draw the jury did so and certified the list so drawn. The only irregularity was the failure of the clerk to deliver the certified copy to the sheriff. The record shows that the clerk did deliver a copy of the certified list to the sheriff, and that upon this list the sheriff summoned the grand jury. There is no showing that any person actually drawn and listed on the certified list was left off the venire nor is it contended that persons not drawn were summoned. No claim is made of fraud or impartiality. There was substantial compliance with the requirements of this statute. Since this statute was directory only, deviations from it without a showing of fraud or prejudice to the party questioning the regularity of the formation and selection of the grand jury will not be grounds for setting aside the indictment.

The third contention, that unauthorized persons were present during the session of the grand jury, is based upon Sec. 105-19-9 and the prohibition contained therein. This section provides:

"* * * The district attorney or attorneys for the state may at all times appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable by them, and may interrogate witnesses before them whenever they shall deem it necessary; but no other person shall be permitted to be present during the sessions of the grand jury, except the members, interpreters and witnesses actually under examination, and no person must be permitted to be present during the expression of their opinion or the giving of their votes upon any matter before them."

The answer filed to the alternative writ of prohibition admitted that one Zar E. Hayes, a duly appointed, qualified and acting assistant attorney general of the state of Utah, and one Joseph E. Evans, a duly appointed qualified and acting special assistant attorney general, were present during some of the sessions of the grand jury. There is no claim of fraud nor is there any showing of actual prejudice to the petitioners from the appearance before the grand jury of these two assistant attorneys general. The contention is that no actual prejudice need be shown, but that the mere presence of unauthorized persons at the sessions of the grand jury is sufficient to render void this indictment. Section 105-19-9 does expressly prohibit any person other than those authorized to be present at the sessions of the grand jury. While there is some disagreement in the authorities as to whether the mere presence of unauthorized persons, without a showing of prejudice, would be sufficient to render an indictment void, the weight of authority and the better reasoned cases so hold. See Coblentz v. State, 164 Md. 558, 166 A. 45, 88 A. L. R. 886; Latham v. United States, 5 Cir., 226 F 420, L. R. A. 1916D, 1118; Hartgraves v. State, 5 Okla.Crim. 266, 114 P. 343, 33 L. R. A., N. S., 568, Ann. Cas....