Rich v. Varian

• Decision Date: 02 December 1922
• Citation: 210 P. 1011,36 Idaho 355
• Parties: S. GROVER RICH et al., Plaintiffs, v. B. S. VARIAN, Respondent
• Court: Idaho Supreme Court

210 P. 1011

36 Idaho 355

S. GROVER RICH et al., Plaintiffs, v. B. S. VARIAN, Respondent

Supreme Court of Idaho

December 2, 1922

GRAND JURY-QUORUM-INDICTMENT-ABSENCE OF JUDGE DURING SITTINGS OF GRAND JURY-CHANGE OF JUROR.

1. While the law requires a grand jury to consist of sixteen persons, it also provides that twelve jurors shall constitute a quorum.

2. Held, that the introduction of a new juror after indictments had been found and before they had been reported to the court was not prejudicial to any right of defendants.

3. The district court may be in recess during the sessions of a grand jury without invalidating indictments found, but the practice of holding a term of court in another county during such sessions is to be condemned.

Original proceedings on application for Writ of Prohibition. Denied.

Peremptory writ denied and alternative writ quashed.

S. T Lowe and Peterson & Coffin, for Plaintiffs.

"Where a term of court for each county in the district begins on a specified day, the duration of the term is ended by the arrival of the day fixed for the beginning of the term in another county, unless there are statutes authorizing sessions of the same court to be held in different counties at the same time, or authorizing the adjournment or postponement of the term in session beyond the time fixed for holding court in another county." (15 C. J., p. 881; McVay v. State, 104 Ark. 629, 150 S.W. 125; Central Coal & Coke Co. v. Graham, 129 Ark. 550, 196 S.W. 940; Roberts & Schafer Co. v. Jones, 82 Ark. 188, 101 S.W. 165; Houghton v. Order of United Commercial Travelers, 108 S.C. 73, 93 S.E. 393.)

Roy L. Black, Attorney General, Dean Driscoll, First Asst., and T. M. Morris, for Respondent.

A suspension or adjournment of court without a definite order adjourning to a day certain does not terminate the term. (15 C. J. 881, 883; Ex parte Harrell, 57 Ore. 95, 110 P. 493; Tucker v. State, 10 Okla. Cr. 569, 139 P. 998; Commonwealth v. Bannon, 97 Mass. 214; Terr. v. Armija (N. M.), 89 P. 267; Terr. v. Barela, 15 N.M. 520, 110 P. 845; Brown v. State, 11 Okla. Cr. 498, 148 P. 181; Jones v. McClaughry, 169 Iowa 281, 151 N.W. 210; Bidwell v. Love, 22 Okla. 549, 98 P. 425; Stirling v. Wagner, 4 Wyo. 5, 31 P. 1032; Carland v. Custer County, 5 Mont. 579, 6 P. 24.)

The absence of the judge and the adjournment of court pending the sessions of the grand jury did not affect the indictments. (People ex rel. Pickard v. Sheriff, 11 N.Y. Civ. Proc. 172; Nealon v. People, 39 Ill.App. 481; 28 C. J. 763, sec. 3; 796, sec. 82.)

The discharge of a juror after finding an indictment and before its return, and the substitution of another, did not vitiate the indictment. (Commonwealth v. Burton, 4 Leigh (Va.), 645, 26 Am. Dec. 337; note, 27 L. R. A. 780; 28 C. J. 787, sec. 61.)

A loss in membership subsequent to the impaneling, whether by death, sickness or otherwise, so long as a sufficient number remains to return an indictment, is sufficient. (People v. Roberts, 6 Cal. 214; People v. Butler, 8 Cal. 435; People v. Hunter, 54 Cal. 65; People v. Simmons, 119 Cal. 1, 50 P. 844; State v. Miller, 3 Ala. 343; Beasley v. People, 89 Ill. 571; State v. Brainerd, 56 Vt. 532, 48 Am. Rep. 818; State v. Conners, 233 Mo. 348, Ann. Cas. 1912C, 28, 135 S.W. 444.)

The sheriff's mistake in summoning 25 jurors on open venire instead of 20, as ordered by the court, and summoning them for April 2d instead of April 3d, when they appeared in court on the 3d, did not affect the indictment. (State v. Roberts, 33 Idaho 30, 188 P. 895; 28 C. J. 773, 781; State v. Cambron, 20 S.D. 282, 105 N.W. 241; Parus v. District Court, 174 P. 706; Sharp v. United States, 13 Okla. 522, 76 P. 177; State v. Witt, 33 Ore. 594, 55 P. 1053.)

DUNN, J. Rice, C. J., and McCarthy, J., concur. Budge, J., took no part. Lee, J., dissents.

OPINION

DUNN, J.

On April 27, 1922, indictments were filed in the district court of the eleventh judicial district for Cassia county charging petitioners with certain felonies under the banking laws of this state, and petitioners have applied to this court for a writ of prohibition commanding Honorable B. S. Varian, the district judge presiding in said county at the time of the return of said indictments, to desist and refrain from any further proceedings under said indictments. Petitioners in their brief filed in this court present the following four points upon which they rest their claim to the relief sought, but discuss only the first, second and fourth:

1. The grand jury was not legally constituted because the Cassia county court was not in session;

2. The grand jury was not legally constituted because of the substitution on April 26th of Alfred Crane for Emil J. Henzel;

3. The grand jury was not legally constituted because of the failure of the officers of the court to comply with the order of the court for the summoning of twenty good and lawful citizens to appear in court on April 3, 1922, and the change by the clerk and sheriff of the court of said order to twenty-five good and lawful citizens to appear on April 2, 1922; and

4. Prohibition is the proper remedy in the matter.

Petitioners rest their contention that the grand jury was not regularly constituted because the Cassia county court was not in session upon the following facts: In December, 1921, the judges of the eleventh judicial district made an order fixing the terms of court in said district for the year 1922 as follows:

Twin Falls County: January 9th, February 20th, April 10th, May 15th, September 11th, November 11th;

Cassia County: February 20th, May 15th, November 13th; Minidoka County: March 20th, September 11th; Jerome County: April 3d, October 9th.

On March 20, 1922, Honorable T. Bailey Lee, one of the judges of said district, postponed the opening of the Minidoka county term from March 20th to March 30th, and then from March 30th to April 5th. The Cassia county term appears to have been opened by Judge Lee on February 20th, and to have continued without question up to and including April 3, 1922, the date upon which the grand jury was impaneled which returned the indictments involved in this case. On April 5th, the grand jury having been impaneled and sworn and duly charged by the court, Judge Lee opened a term of court at Rupert, in Minidoka county, pursuant to the orders theretofore made by him. The term at Rupert proceeded in the usual way, cases being called and tried by him up to and including the 29th day of April. In the meantime the grand jury in Cassia county remained in session until the 23d day of April, 1922, when with all the members present, they voted to return the indictments involved in this proceeding. On April 26th, Emil J. Henzel one of the grand jurors, was excused by Judge Lee on account of sickness and an order was made requiring the summoning of an additional grand juror. Pursuant to this order Alfred Crane was summoned, examined and sworn and made a member of the grand jury. No evidence of any kind was submitted to the grand jury after Crane became a member and it does not appear that he had any part in the returning of said indictments except probably to accompany the other members of the grand jury into court at the time said indictments were returned and filed. At the time Juror Henzel was excused and also at the time the said indictments were returned into court Judge Lee was present, but the record fails to disclose whether or not he was in Burley, the county seat of Cassia county, at any other time during the sittings of the grand jury.

No order was made by Judge Lee adjourning the term of the court in Cassia county, but it is the contention of petitioners that the necessary legal effect of his opening the term in Minidoka county was to adjourn the Cassia county term. If this contention of petitioners is correct then it is not open to question that the grand jury had no legal existence at the time of finding and returning these indictments. Following the provision of our statute regarding the impaneling and swearing of grand juries and the court's charge to them our statute provides:

"C. S., sec. 8784: The grand jury must then retire to a private room and inquire into the offenses cognizable by them. On the completion of the business before them, they must be discharged by the court, but, whether the business is completed or not, they are discharged by the final adjournment of the court."

It seems clear that Judge Lee had not only no intention to adjourn the term at Burley when he opened court at Rupert but that his intention was not to adjourn it, but to take a recess while the grand jury were prosecuting their investigations. After the grand jury had been impaneled, sworn and charged by him as required by law the court had no duty laid upon him except to be ready to give advice in case it should be requested, or to receive a report from the grand jury. The judge had no right to be present at the sessions of the grand jury unless requested (C. S., sec. 8799), and neither he nor the court could exercise any control over their deliberations. They fixed the hours for their sessions, which could not be controlled by the court, and the prosecuting attorney, who was permitted by law to be present for the examination of witnesses, was authorized to issue process for such witnesses as the grand jury might wish to examine. Notwithstanding the fact that Judge Lee was holding a term of court in Rupert, the record does not show that he was not daily in Burley, nor that if his presence had been requested at any time while he was holding court in Rupert he could not within an hour or less time have been in the presence of the grand jury at Burley. While we think the practice of having a grand jury in session in one county while...