State v. Hay

• Decision Date: 27 January 1948
• Docket Number: 8684.
• Parties: STATE v. HAY.
• Court: Montana Supreme Court

194 P.2d 232

120 Mont. 573

STATE v. HAY.

No. 8684.

Supreme Court of Montana

January 27, 1948

As Amended on Denial of Rehearing June 16, 1948.

Appeal from District Court, First Judicial District, Lewis & Clark County; George W. Padbury, Jr., Judge.

Donald Robert Hay was convicted of robbery, and he appeals.

Affirmed.

Rankin & Acher and Clyde Hayden, all of Helena for appellant.

R. V Bottomly, Atty. Gen., Clarence Hanley, Alfred F. Dougherty and M. Baxter Larson, Asst. Attys. Gen., Forrest H. Anderson and Melvin E. Magnuson, County Attys., both of Helena, for respondent.

METCALF Justice.

The defendant Donald Robert Hay has appealed from a judgment of conviction of the crime of robbery and from an order denying him a new trial.

The record consists of the judgment roll, a notice of appeal and a bill of exceptions limited to the proceedings on settlement of instructions and defendant's challenge to the jury panel and the court's order thereon.

On February 20, 1946, a trial jury of 70 members was summoned to appear March 5, 1946. Of those summond, eight failed to appear, six were disqualified, nine claimed exemptions and 26 for good cause shown were excused, leaving 19 who qualified.

The instant case was set for trial April 17, 1946. On April 8, 1946, in the course of the trial of a civil case presided over by the Hon. Jeremiah J. Lynch of the second judicial district, the regular panel was exhausted. Thereupon, according to the minutes of the court, 'the Hon. George W. Padbury, Jr., and the Hon. A. J. Horsky, Judges of this court being of the opinion that, from causes that could not be avoided, the number of trial jurors, to-wit, 19 jurors now in attendance is insufficient to complete the jury for the cause now on trial, and for other causes now set or to be set for trial on the present calendar and that a sufficient number of jurors cannot be obtained by drawing from Jury Box No. 1, without great delay, expense and inconvenience, therefore instructed and requested the Hon. Jeremiah J. Lynch, presiding in this trial to order and direct that a venire of 20 names be drawn from Jury Box No. 3, and that the persons whose names are so drawn appear before this court at the hour of 3 o'clock P. M., April 8, 1946, to supplement the panel heretofore drawn and to serve as regular jurors during the remainder of the present term of court in both departments of this court, and that service be had on the persons so drawn by personal service.'

Thirteen of this special venire appeared, of whom one claimed exemption, four were excused and eight were retained. Thereafter two other jurors were excused.

On April 15, 1946, a challenge in writing to the jury panel was filed, which after argument, was disallowed. On April 17th the court made the following order: 'In this matter, it appearing to the court that all of the jurors on the regular panel, now in attendance upon this court having been sworn and examined and the trial jury being incomplete for the trial of the case of The State of Montana, Plaintiff vs Donald Robert Hay, Defendant, now in progress, and the entire regular panel being exhausted, and that a sufficient number of jurors cannot be obtained for the trial of this cause to form a jury by drawing from Jury Box No. 1 without great delay, expense and inconvience, it is ordered and directed that a special venire of 25 names be drawn from Jury Box No. 3 and that the persons whose names are so drawn appear before this court at the hour of 10:00 o'clock A. M., April 18, 1946, to serve as special jurors herein, * * *'

Seventeen of this special venire appeared and qualified and the defendant went to trial before a jury consisting of six whose names had been drawn on the regular panel on February 20, 1946, two whose names had been drawn from jury box No. 3 on April 8, 1946, and four whose names had been drawn from jury box No. 3 on April 17, 1946. All the jurors were residents of the city of Helena.

It is the defendant's contention that the trial court erred in denying the challenge to the jury panel.

The defendant based his challenge to the panel upon two propositions, the first of which is as follows: The special venire of 20 names drawn from jury box No. 3 on April 8, 1946, was drawn pursuant to an order made by the Hon. Jeremiah J. Lynch. Apparently the regularly qualified district judges of the first judicial district had been disqualified and Judge Lynch was holding court in a civil cause as a judge called in under the provisions of section 8868, Revised Codes of Montana 1935. After Judge Lynch exhausted the regular panel he was 'instructed and directed' by Judges Padbury and Horsky, the regularly constituted judges of the first judicial district, to draw a venire of 20 names from jury box No. 3 'to supplement the panel heretofore drawn and to serve as regular jurors during the remainder of the present term of court in both departments of this court.'

Jurors drawn on this special panel were retained after the completion of the civil cause presided over by Judge Lynch. The defendant contends that when jurors are drawn by a judge called in to preside over a single case in place of a disqualified judge, they are empowered to serve on that single case only and after the completion of the case their powers are exhausted.

Section 9341, Revised Codes, allows the court to draw a special panel of jurors from jury box No. 3 sufficient to complete the jury. The jurors so drawn must be discharged at the conclusion of the case. But this procedure 'has no especial connection with section 8911 * * *. It is intended to enable the court to proceed without undue delay where the regular panel, which is ample for all ordinary purposes, has been exhausted because of an unusual number of disqualifications for cause in the particular case on trial, or where the jury impaneled in the case previously submitted is still in deliberation.' Lee v. Hayden, 63 Mont. 589, 596, 208 P. 596, 597.

From the minutes of the court and the order issued by Judge Lynch it is evident that the first special panel was not for the one trial over which Judge Lynch was presiding but was to replenish the regular panel and the jurors were 'authorized to serve * * * through the remainder of the trial term on the same footing as the jurors originally drawn from box No. 1.' Lee v. Hayden, supra.

The court made a finding that the 19 jurors in attendance were insufficient 'to complete the jury for the cause now on trial, and for other causes now set or to be set for trial on the present calendar'; that great delay, expense and inconvenience would result if the jurors were drawn from jury box No. 1 and that a venire be drawn to serve for the remainder of the term in both departments.

This order as set out in the minutes of the court, conforms to the requirements of section 8911, Revised Codes, and indicates that the venire drawn from jury box No. 3 by Judge Lynch was intended by Judge Lynch and Judge Horsky and Judge Padbury to serve in all departments for the remainder of the term.

Section 8821, Revised Codes, declares, that a judge holding court in a district other than his own at the request of the judge of that district 'has the same power either in court or chambers as a judge thereof.'

Section 9098, subdivision 4, says: 'If such judge [the judge called in] shall so appear he shall be vested with, and shall exercise, in said cause, all the authority of the judge of the district in which said action or proceeding may be pending.'

If one of the local judges and been presiding at the trial of the civil cause instead of Judge Lynch and an emergency had arisen, clearly under the provisions of section 8911, Revised Codes, he would have had the authority to draw additional jurors from jury box No. 3 to serve for the remainder of the term. Then it follows that sections 8868, 8821, and 9098 give the judge called in the same power.

The seventeen jurors remaining from the original panel and seven members of the panel drawn by Judge Lynch were all residents of the city of Helena. The second special venire was drawn from Jury box No. 3 and of necessity these jurors were also all residents of Helena. The defendant's second contention is that he had a right to be tried by a jury drawn from the county at large and that the jury panel from which his jury was taken was not drawn from a cross section of the county.

The jury list for jurors in this state is made up by the chairman of the board of county commissioners, the county treasurer, and the county assessor, sec. 8896, from the last assessment roll of the county and includes the names of all persons qualified to serve as trial jurors, sec. 8897. The list is delivered to the clerk of the district court, sec. 8898, who prepares individual ballots for each person whose name is on the list and inserts each ballot in a black capsule and deposits all the capsules in a box known as jury box No. 1, sec. 8899.

In addition the clerk deposits capsules containing duplicate ballots in a box known as jury box No. 3 of all persons selected and returned as trial jurors who reside in the city or town where a trial term of the court is held. Sec. 8907.

Whenever the business of the court requires the attendance of a trial jury the court makes an order specifying the number of jurors to be drawn and the time at which the jurors are required to attend. Sec. 8902.

'If a sufficient number of trial jurors, duly drawn and notified do not attend or cannot be obtained in the opinion of the court, without great delay or expense to form a jury, the court may, in its discretion direct the clerk to draw from box No. 3, in the presence of the court, the names of as many persons as the court deems sufficient for that...