Quillen v. State

• Decision Date: 01 April 1955
• Citation: 49 Del. 163,10 Terry 163,112 A.2d 848
• Parties: , 49 Del. 163 David Warren QUILLEN, Defendant Below, Appellant, v. The STATE or Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

Page 848

112 A.2d 848

10 Terry 163, 49 Del. 163

David Warren QUILLEN, Defendant Below, Appellant, v. The STATE or Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

April 1, 1955.

Daniel J. Layton, Jr., and Everett F. Warrington, Georgetown, for appellant.

John J. McNeilly, Dep. Atty. Gen. (Vincent A. Theisen, Chief Dep. Atty. Gen., with him on the brief), for the State.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

SOUTHERLAND, Chief Justice.

Defendant's petition for reargument is directed to that part of our opinion dealing with his motion to quash the panel of petit jurors. We held that he had been guilty of inexcusable delay in not making this motion until the day of trial, after the court had convened and the jurors and witnesses were in attendance. Defendant now avers that a similar motion, on similar grounds, had been filed in the case on May 14, 1954 directed to an order of the Superior Court of May 12, 1954 for the summoning of additional jurors to serve at the April Term, then in session. This prior motion, says defendant, raised the same question of law as the motion made on the eve of trial, and was overruled by the Superior Court. Hence defendant argues that at the trial he was bound by the ruling, and was required only to renew the motion as a formal matter in order to reserve the point for argument on appeal.

The facts above stated did not appear in the record that was before us when the appeal was heard. They are now embodied in a supplemental record that has since been certified to us by the Superior Court, pursuant to application made to that court with leave of this Court.

The supplemental record falls somewhat short of clearly establishing the making of the prior adverse ruling relied upon. But the Attorney General has made no point of this, and we think the defendant is entitled to a decision on the merits of the matter.

The basic facts are stated in our prior opinion. See Quillen v. State, Del., 110 A.2d 445, 455. Of the sixty-four jurors drawn for the June Term twenty-four had been excused. Under the authority of 10 Del.C. § 4510 the Superior Court directed the Jury Commissioners to draw forty-six additional jurors. The statute provides for an order 'for filling up the requisite number of jurors to serve at the Court.' The 'requisite number' appears to refer to the number sixty-four--that is, to the total number required to be drawn in a capital case, since the number of jurors who actually serve is seldom the exact number drawn. Hence the court's order exceeded the authority conferred by the statute and brought the total panel up to eighty-six instead of sixty-four--an excess of twenty-two. The question is whether this irregularity required the quashing of the additional panel.

Statutory provisions regulating the manner of drawing and summoning jurors are generally held to be directory in nature and not mandatory unless prejudice to the defendant's rights is shown, or may be inferred as a matter of law. Pitts v. White, Del.Super., 103 A.2d 245, affirmed Del., 111 A.2d 217; 1 Thompson on Trials, §§ 13, 33, 34; 92 A.L.R. 1109, annotation. Examples of prejudice are found in cases in which the jury has been drawn by unauthorized persons. Such a flagrant disregard of the law opens the door to fraud and imports prejudice. See State v. Rouner, 333 Mo. 1236, 64 S.W.2d 916, 92 A.L.R. 1099; Rhodman v. State, 153 Miss. 15, 120 So. 201; Peak v. State, 50 N.J.L. 179, 12 A. 701. But if the irregularity consists only in the drawing and summoning of more jurors than the statutory number, it is generally held that, absent a showing of actual prejudice, the error is no ground for quashing the panel. State v. Medley, 66 W.Va. 216, 66 S.E. 358, 360-361; Anderson v. State, 5 Ark. 444, 445; Umble v. State, 207 Ala. 508, 93 So. 531; Barber v. James, 18 R.I. 798, 31 A. 264.

So far as concerns the substantive rights of a defendant in a criminal case, it would seem that if any prejudice flows from disregard of the statutory number of jurors, it would be more likely to come from the summoning of an insufficient number rather than from an excessive number. If the panel in attendance is small, there is a possibility of exhausting it by challenges, and the court might have to call talesmen whose background might be unknown to the defendant. ¹ But it is difficult to find any prejudice from the attendance at the trial of some additional qualified jurors.

Statutes regulating the number of jurors to be summoned and the manner of selecting them should be construed in the light of the underlying principle that a litigant has no vested right in the attendance of any particular set of jurors; 'all that he can insist upon is an impartial jury, and, at the most, a substantial compliance with the statutes governing the selecting and summoning of jurors.' 31 Am.Jur., 'Jury', § 102.

Defendant argues that § 4510, although using the word 'may' and permissive in form, is mandatory in meaning, and requires the court, whenever an insufficiency of jurors exists, to enter an order filling up the panel to sixty-four, the number fixed by § 4517. Hence, he says, the provision relating to the additional number to be summoned must be construed as mandatory.

This argument, if sound, would lead to a surprising result. The court, upon excusing one juror, would have to enter a special order to draw another. This unreasonable result suggests that there is a fallacy in the reasoning. It is not difficult to find.

The argument assumes that the statutes require the attendance of sixty-four jurors at the trial. This is plainly incorrect. The statutes refer only to the number of jurors to be summoned, not to the number who may actually serve. It is common knowledge that the number in attendance is frequently less than the number summoned because of the inevitable excuses from service, sometimes granted at the last moment. In administering a statute such as § 4510, the court necessarily has a discretion to determine whether the probable insufficiency of jurors is great enough to make it advisable to draw an additional panel.

We are of opinion that § 4510 is primarily administrative in character, designed to enable the court to transact the business of litigation with efficiency and dispatch. In State v. Medley, supra [66 W.Va. 216, 66 S.E. 361], a statute fixing the number of jurors to be summoned was termed by the court 'an economic provision to avoid the summoning of more jurors than might be really needed to transact the business of the court'.

We hold that § 4510 is directory and not mandatory. It follows that the summoning of the extra twenty-two jurors is not ground for quashing the panel unless prejudice to the defendant is shown.

Defendant contends that he was in fact prejudiced in two respects:

First, it is said that the addition to the panel of the extra jurors thrust upon defendant's counsel a serious burden of additional labor of investigation. We are not impressed with this argument. The order for the additional panel was made on July 10th. On July 17th the case was continued for trial to September 21st. The elapsed time appears to be ample for any reasonable investigation of the members of the panel, even with the excess, and the record is bare of any showing that counsel were actually at a disadvantage. And no objection of this sort was made to the trial court. In effect, defendant chose to stand on the proposition that prejudice in this respect may be inferred as a matter of law--a proposition that we do not accept.

We do not mean to imply that prejudice could never be inferred from the summoning of an excessive number of jurors. Conceivably, the number might be so large as to establish in itself a condition...