Rowland v. State

• Court: Arkansas Supreme Court
• Writing for the Court: Ed. F. McFaddin, Justice.
• Citation: Rowland v. State, 213 S.W.2d 370, 213 Ark. 780 (Ark. 1948)
• Decision Date: 28 June 1948
• Docket Number: 4483
• Parties: Rowland v. State

213 S.W.2d 370

213 Ark. 780

Rowland v. State

No. 4483

Supreme Court of Arkansas

June 28, 1948

Rehearing Denied October 4, 1948.

Appeal from Garland Circuit Court; Maupin Cummings, Judge on Exchange.

Affirmed.

Henry Donham and C. Floyd Huff, Jr., for appellant.

Guy E. Williams, Attorney General, and Oscar E Ellis, Assistant Attorney General, for appellee.

OPINION

Ed. F McFaddin, Justice.

This appeal is from a conviction on an indictment for bribery, wherein it was alleged that the defendant (appellant here), Jay M. Rowland, as city attorney of Hot Springs, received money as bribes, to-wit, $ 50 each month during the years 1945 and 1946 from Otis McCraw, operator of the Southern Club, a gambling establishment; and that said bribes were paid to Rowland with intent to influence his actions and decisions as city attorney pertaining to the ordinance which prohibits gambling. The defendant was indicted under § 3249, Pope's Digest. Some of our cases involving the offense of bribery are: Watson v. State, 29 Ark. 299; Chapline v. State, 77 Ark. 444, 95 S.W. 477; Butt v. State, 81 Ark. 173, 98 S.W. 723, 118 A. S. R. 42; Value v. State, 84 Ark. 285, 105 S.W. 361, 13 Ann. Cas. 308; State v. Dulaney, 87 Ark. 17, 112 S.W. 158, 15 Ann. Cas. 192; State v. Bunch, 119 Ark. 219, 177 S.W. 932; Sims v. State, 131 Ark. 185, 198 S.W. 883; Payne v. State, 165 Ark. 229, 263 S.W. 780; and Barrentine v. State, 194 Ark. 501, 108 S.W.2d 784. The record here is voluminous; ^[1] but in the excellent brief for the appellant all the assignments are grouped into six topic headings; and in the oral argument it was agreed that these six topic headings embrace all the assignments. We proceed therefore to list and discuss the six topic headings as contained in the appellant's brief.

I. Appellant says, "The Grand Jury was Illegally Empaneled and the Indictment is Void." The City of Hot Springs is in Garland county, which is in the 18th Judicial Circuit. Judge Earl Witt was the Judge of this circuit until December 31, 1946, and was succeeded by Judge C. H. Brown on January 1, 1947. The regular terms of the Garland Circuit Court begin on the fourth Monday in March and September of each year. ^[2] At the opening of the September, 1946, term, Judge Witt empaneled a grand jury which had been selected by the jury commissioners. This grand jury served only a short time, and in October, 1946, a court order was entered, reading: "The said grand jury, having no further business under consideration, adjourned subject to the call of the foreman of the grand jury or the call of the Judge of this court."

That grand jury was never reassembled. On February 21, 1947, (Judge C. H. Brown having taken office on January 1, 1947, as aforesaid) a court order was entered, dismissing that grand jury; and on March 1, 1947, a court order was entered, directing the sheriff to summon a special grand jury to convene on March 4, 1947. The special grand jury did so convene, and, on March 19, 1947, returned the indictment against the defendant (appellant), on which he was tried in this case. ^[3]

Appellant claims that the special grand jury was not empaneled in accordance with law, and that the indictment should have been quashed. His motion to that effect was overruled by the court (Judge Cummings presiding) on April 14, 1947. Appellant cites, inter alia, Art. II, § 8 of our Constitution, Amendment XXI thereto, and §§ 3798-99, 3829, 3882-4, 3887, 8306-8, 8312, 8326-27, and 8333, Pope's Digest. In addition to textbooks and cases from other jurisdictions, appellant cites the following decisions from this court: State v. Cantrell, 21 Ark. 127; Wilburn v. State, 21 Ark. 198; Harding v. State, 22 Ark. 210; State v. Swim, 60 Ark. 587, 31 S.W. 456; Bowie v. State, 185 Ark. 834, 49 S.W.2d 1049; Mo. Pac. Transportation Co. v. Parker, 200 Ark. 620, 140 S.W.2d 997.

We hold that the circuit court had full power to empanel a special grand jury as was done in this case. Section 3004, Crawford & Moses' Digest (being §§ 71-72 of Chap. 45 of the Revised Statutes of 1837), says: "If any offense be committed or discovered during the sitting of any court after the grand jury attending such court shall have been discharged, such court may, in its discretion, by an order to be entered in the minutes, direct the sheriff to summon a special grand jury. The sheriff shall, in pursuance of such order, forthwith summon such grand jury from the inhabitants of the county qualified to serve as grand jurors, who shall be returned and sworn, and shall proceed in the same manner in all respects as provided by law in respect to other grand jurors."

Under the foregoing statute we held that the summoning of a special grand jury was within the discretion of the court. (See Davis v. State, 118 Ark. 31, 175 S.W. 1168, and cases there cited; and see, also, Breysacher v. State, 123 Ark. 101, 184 S.W. 433.) Under the foregoing statute the special grand jury could have been summoned only when an offense had been committed or discovered "during the sitting of any court after the grand jury attending such court shall have been discharged." This restriction, as stated in the italicized quotation last above, was eliminated by § 33 of Initiated Act 3 of 1936 ^[4] wherein § 3004, Crawford & Moses' Digest, was amended to read: "At any time a grand jury is not in session, the court, in its discretion, by order entered of record, may empanel a special grand jury. Such special grand jury when empaneled shall have all the powers and proceed in all respects as provided by law for the conduct of regular grand juries."

The foregoing § 33 of Initiated Act 3 of 1936 is full authority for the calling of the special grand jury in the case at bar. The regular grand jury was "not in session": with the approval of the court, in October, 1946, it had adjourned subject to call; also it had been discharged by action of the court on February 21, 1947. So, a special grand jury could have been empaneled.

Appellant says that the special grand jury should have been selected by the jury commissioners, rather than by the sheriff. But we have repeatedly held, as stated by Mr. Justice Hart in Brewer v. State, 137 Ark. 243, 208 S.W. 290: "Moreover, under our system, there are two modes by which a grand jury may be lawfully selected. One is where they are selected pursuant to the provisions of the statute; and the other is where the circuit court causes them to be selected in the exercise of its inherent constitutional right. Wilburn v. State, 21 Ark. 198, and Straughan v. State, 16 Ark. 37."

To the same effect is Edmonds v. State, 34 Ark. 720. The omission, in § 33 of Initiated Act 3 of 1936, of the provision found in § 3004, Crawford & Moses' Digest, to the effect that the court might direct the sheriff to summon the special grand jury, is immaterial, since we had said, in the quotation from Mr. Justice Hart above, that the court, in having a grand jury summoned by the sheriff, was acting under its "inherent constitutional right." The existence or absence of a statute -- authorizing the court to have the sheriff summon the jury -- could make no difference when the circuit court was acting under its inherent constitutional right. So we hold that the circuit court had the power to empanel a special grand jury just as it did in this case.

II. Appellant says, "There was an Illegal Discrimination Against Defendant in the Selection of the Special Grand Jury." Appellant offered evidence tending to show: (a) that for many years prior to 1946 Hot Springs and Garland county had been under the political domination of the Leo McLaughlin faction of the Democratic party; (b) that appellant was a member of the McLaughlin faction; (c) that in the 1946 state and county Democratic primary there was a contest between the so-called "G.I. Ticket" and the "McLaughlin Ticket"; and (d) that the G.I. Ticket was headed by Judge C. H. Brown, Sheriff I. G. Brown and others (the Browns were not shown to be related). The evidence showed that the feeling ran high between these factions, both in the Democratic primary in August, 1946, and in the general election in November, 1946.

The point here is: the appellant claims that Judge Brown and Sheriff Brown and the prosecuting attorney and other officials -- all elected on the G.I. Ticket -- willfully and deliberately selected, for the special grand jury, men known to be hostile to the McLaughlin Ticket, and known to be loyal and devoted adherents of the G.I. Ticket; and appellant claims that there was a violation of his rights, as guaranteed by Art. II, § 8 of the State Constitution, and Amendment XIV of the United States Constitution, in the alleged exclusion from the special grand jury of all persons except G.I. adherents. In support of his contentions, appellant cites these cases from the U.S. Supreme Court: Hill v. Texas ^[5] (on exclusion of Negroes), Hale v. Kentucky ^[6] (on exclusion of Negroes), Thiel v. Southern Pacific Co. ^[7] (on exclusion of day laborers), and Ballard v. United States ^[8] (on exclusion of women); and appellant also cites these cases from other courts: Carruthers v. Reid ^[9] (on exclusion of Negroes), Walter v. Indiana ^[10] (on exclusion of women), and Kentucky v. Powers ^[11] (on exclusion of Republicans). This last-cited case was reversed by the U.S. Supreme Court on the question of jurisdiction. ^[12]

The opinion by Judge Cochran in Kentucky v. Powers supra, is the only case to which our attention has been called, wherein has been discussed political affiliation as constituting a distinct classification in the matter of selecting jurors for either grand or petit jury service. This matter of "groups and classifications" could easily be carried to an extreme. To illustrate: if religion be...