People v. Lembke

• Citation: 320 Ill. 553,151 N.E. 535
• Decision Date: 23 April 1926
• Docket Number: No. 16620.,16620.
• Parties: PEOPLE v. LEMBKE.
• Court: Supreme Court of Illinois

320 Ill. 553

151 N.E. 535

PEOPLE

v.LEMBKE.

No. 16620.

Supreme Court of Illinois.

April 23, 1926.

Error to Circuit Court, Winnebago County; Earl D. Reynolds, Judge.

Harry Lembke was convicted of receiving stolen property, knowing the same to have been stolen, and he brings error.

Reversed and remanded.David D. Madden and Hall & Dusher, all of Rockford (Roy F. Hall, of Rockford, of counsel), for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., William D. Knight, State's Atty., of Rockford, Virgil L. Blanding, of Springfield, and Alfred B. Louison, of Rockford, for the People.

DUNCAN, J.

Plaintiff in error, Harry Lembke, was indicted in the circuit court of Winnebago county for the crime of receiving stolen property July 25, 1924, knowing the same to have been stolen. His trial resulted in a verdict of guilty as charged in the indictment, and he was sentenced to the penitentiary for an indeterminate term. He has sued out this writ of error to review the judgment, assigning as errorthe refusal of the court to sustain his challenge to the array and quash the venire of jurors who tried the cause, refusal of the court to sustain objections to leading questions, admission of incompetent testimony, the giving and refusing of instructions, and that the verdict is contrary to the evidence.

The following sections of chapter 78 of Hurd's Revised Statutes of 1921, entitled ‘Jurors,’ provide as follows:

‘Sec. 1. That the county board of each county shall, at or before he time of its meeting, in September, in each year, or at any time thereafter, when necessary for the purposes of this act, make a list of a sufficient number, not less than one-tenth of the legal voters of each town or precinct in the county, giving the place of residence of each name on the list, to be known as a jury list.

‘Sec. 2. At the meeting of the county board in the respective counties in this state, containing a population of not more than 250,000, in September, in the year 1874, and in each year therafter, such board shall select from such list a number of persons equal to one hundred (100) for each trial term of the circuit and other courts of record, except county courts, which may be provided by law, to be held during the succeeding year, to serve as petit jurors. * * * Jurors in all counties in Illinois must have the legal qualifications herein prescribed, and shall be chosen a proportionate number from the residents of each town, or precinct, and such persons only as are: Inhabitants of the town, or precinct, not exempt from serving on juries: of the age of twenty-one years, or upwards, and under sixty-five years old; in the possession of their natural faculties, and not infirm or decrepit; and free from all legal exceptions, of fair character, of approved integrity, of sound judgment, well informed, and who understand the English language. * * *

‘Sec. 7. A list of jurors so selected shall be kept in the office of the county clerk, who shall write the name and residence of each person selected upon a separate ticket and put the whole into a box to be kept for that purpose.

‘Sec. 8. At least twenty days before the first day of any trial term of any of said courts, the clerk of such court shall repair to the office of the county clerk, and in the presence of the county judge and of such county clerk, after the box containing said names has been well shaken by the county clerk and being blindfolded shall without partiality, draw from said box the names of a sufficient number of said persons then residents of said county, not less than thirty for each two weeks that such court will probably be in session for the trial of common-law cases, to constitute the petit jurors for that term. * * *

‘Sec. 12. The judge shall examine the jurors who appear, and if more than twenty-four petit jurors who are qualified and not subject to any exemption, or any of the disqualifications provided in this act, shall appear and remainafter all excuses are allowed, the court shall discharge by lot the number in excess of twenty-four. If for any reason the panel of petit jurors shall not be full at the opening of such court, or at any time during the term, the clerk of such court may again repair to the office of the county clerk and draw in the same manner as at the first drawing such number of jurors as the court shall direct, to fill such panel, who shall be summoned in the same manner as the others, and, if necessary, jurors may continue to be so drawn and summoned from time to time until the panel shall be filled.’

It appears that, when a jury was called to try the cause, and before the jurors were sworn to answer questions, and while they were in the jury box, the plaintiff in error by his counsel entered a challenge to the array. In September, 1923, the board of supervisors of Winnebago county had selected 6 per cent. of the registered voters of each township and precinct, and adopted that list as the jury list. The county clerk copied these names on cards, and put them into the jury box kept in his office for that purpose. There were other names in the box that had been in there since 1922 and had been put in there in the same manner as the names were put in in 1923. The 1924 list had not been made at that time. After the board of supervisors had adopted the jury list as above, they did not select any number as eligible for jury service for each or any of the terms of the court for the ensuing year. When the original panel had been exhausted, talesmen were called into the jury box to complete the panel. Before these talesmen were sworn to answer questions, plaintiff in error challenged them on the ground that talesmen could not be called to fill a panel illegally formed. The court overruled the challenge to the array and all challenges to the talesmen summoned and sworn.

The clear provisions of our law with reference to jurors, as shown by the above sections, are that, when jury cases are being tried in any of the circuit courts, the court must at all times have a regular panel of 24 jurors selected in the manner required by the foregoing sections of the statute, and that no talesmen can be summoned until the regular panel is filled and exhausted, except as provided in said section 12; that in case a jury shall be required in such court for trial of any cause, before the panel shall be filled in the manner in that section provided, the court shall direct the sheriff to summon from the bystanders, or from the body of the county, a sufficient number to fill the panel, in order that a jury to try such cause may be drawn therefrom, and the statute then provides for the immediate discharge of such talesmen from the panel when such case is concluded. The regular...