State v. Allison
| Decision Date | 10 November 1948 |
| Docket Number | 8686. |
| Parties | STATE v. ALLISON. |
| Court | Montana Supreme Court |
Rehearing Denied Nov. 30, 1948.
Appeal from District Court, Sixteenth District, Rosebud County; W R. Flachsenhar, Judge.
James A. Allison was convicted of involuntary manslaughter, and he appeals.
Judgment affirmed.
W. E. Keeley, Maurice MacCormick, and Joseph A McElwain, all of Deer Lodge, and George W. Farr, of Miles City, for appellant.
R. V Bottomly, Atty. Gen., and Fred Lay, Asst. Atty. Gen., both of Helena, and J. J. McIntosh, Co. Atty., and F. F. Haynes, both of Forsyth, for respondent.
On June 5, 1946, defendant James A. Allison was convicted of the crime of involuntary manslaughter committed at his tavern in Rosebud County, Montana. The jury fixed his punishment at one year in the state prison. Judgment was entered accordingly and defendant appeals, this being the second appeal of the case. See State v. Allison, 116 Mont. 352, 153 P.2d 141.
Challenges. Defendant's first specification of error is that the court erred in overruling and denying defendant's challenge of the array and jury panel made after the names of 89 'accepted jurors' had been put in the trial jury box and after such persons had been accepted by the court for jury service. The facts pertaining to this challenge are as follows:
On February 4, 1946, Judge Flachsenhar made an order directing a trial jury of 100 persons to be drawn to attend upon said court on the 11th day of March 1946 for the trial of this case and certain civil cases. The judge drew the names of said 100 jurors from jury box No. 1 and said list of jurors was delivered to the sheriff for service by registered mail. Forty-four of said persons appeared and were qualified and sworn as part of the panel of trial jurors for the term. Thereafter it appearing to the court that the number of jurors available from the list already drawn would be insufficient to obtain a trial jury, on March 4, 1946, the judge drew from jury box No. 1 the names of 75 additional persons of whom 45 having been legally summoned by the sheriff qualified and were sworn as the remainder of the jury panel. Accordingly it appears that a total of 89 jurors, 44 plus 45, were sworn in for said jury term on March 11, 1946. All of these jurors were examined on their general qualifications as jurors by the judge in open court on March 11, 1946, and they 'attended in open court' as trial jurors for the March 11, 1946, term or session. On March 12, 1946, the court of its own motion discharged the entire jury panel and continued the trial of the Allison case. At the time the court discharged the panel of so-called 'March jurors' because he concluded it was not a legal panel, no jury had been accepted in the Allison case, no evidence had been introduced and no objection or exception to the discharge of the so-called 'March jurors' had been made or was ever made thereafter. After the adjournment of the term or session of March 11, 1946, the clerk of court deposited the capsules containing the names of the jurors above mentioned of which there were 88 after allowance of exemptions, in jury box No. 1 where they all remained until the later drawing of a jury to try said case. On April 5, 1946, Judge Flachsenhar ordered a trial jury of 175 jurors to be drawn and requiring them to attend a session of the court on May 13, 1946, for the trial of the Allison case alone. The judge drew the names of said 175 persons from jury box No. 1 which at the commencement of the drawing contained in addition to the other names therein all the names of the jurors who had attended and served at the previous trial session (the so-called 'March jurors'). The record discloses that in making up the jury which finally tried the case of State v. Allison at least 17 of these 'March jurors' were again drawn and that two of them sat on the jury which finally tried the case. Counsel for defendant admit that in discharging all the jurors in attendance during the March term the court committed no error of any kind. They also concede that since no challenge to the array or panel constituting the March jury was made, the law is well settled that the right to make such a challenge is waived. But defendant contends that the names of the jurors who attended and served upon the March panel, upon being discharged therefrom, should have been placed in jury box No. 2 instead of jury box No. 1 and that the placing of said names in jury box No. 1 was reversible error entitling the defendant to a new trial or a dismissal of the charge against him.
The defendant was entitled to a jury panel drawn in substantial conformity with the requirements of the statute. State ex rel. Clark v. District Court, 86 Mont. 509-512, 284 P. 266; State v. Landry, 29 Mont. 218, 223, 74 P. 418; State ex rel. Root v. McHatton, 10 Mont. 370, 25 P. 1046; Dupont v. McAdow, 6 Mont. 226, 9 P. 925.
The question then is: Did the clerk of court violate the law in returning the names of the jurors who had attended the March term or session to jury box No. 1 instead of putting them in jury box No. 2 upon the discharge of the panel? Both parties to this appeal cite the case of State v. Landry, supra.
As to the exact question before us on this appeal the Landry case is not in point since it dealt only with the conditions under which a jury may be drawn from jury box No. 3. However, in the Landry case Mr. Chief Justice Brantly succinctly stated the provisions of our statute relative to the drawing of trial jurors. We quote the following from the opinion in that case, substituting only the present Code section numbers [29 Mont. 218, 74 P. 419]:
It is apparent from the above sections of our statute that jury box No. 1 comprises the names of the regular jurors which are made up from the jury list prepared by the jury commissioners for the current year. It is from jury box No. 1 that jurors are selected from the whole body of qualified jurors in the county. Resort to jury box No. 2 is had only when there are insufficient names of jurors remaining in jury box No. 1. Drawing from jury box No. 3, sometimes referred to as the 'town' jury box, is had only under the conditions stated in section 8911 which do not appear in this case.
Now what lawful disposal could have been made by the clerk of court of the 88 names of 'March jurors' which were put back into jury box No. 1 at the close of the March session? He could not have destroyed these ballots; obviously he could not legally have put them in jury box No. 3; neither could they have been put in jury box No. 2 unless such disposition was authorized by section 8905. That section is designed to prevent persons who have already performed jury service from being again called on to render such service until all the jurors in box No. 2 have been drawn and have served.
The language of section 8905 is, we think, plain as to its meaning. In describing what ballots shall be placed in jury box No. 2 after the adjournment of the session, the section twice uses the word 'served.' Once the section refers to the names of those who 'attended and served' and once it refers to the names of those who did 'not appear and serve.' Be it noted, however, that in both instances it is those who have served and not those alone who attended or appeared whose names are to be put in jury box No. 2. Unless therefore the 88 jurors who were summoned as a part of the panel of March jurors can be said to have 'served,' then it would clearly have been error for the clerk to have put back the names of said jurors in jury box No. 2.
What is meant by the word 'served' as used in said section 8905 when it speaks of the names of those who 'attended and served' or the names of those who 'did not appear and serve'? The Colorado case of Waite v. People, 83 Colo. 162, 262 P. 1009, is the leading case which we have found or which has been cited by counsel in which the courts have passed on what is meant by 'serving' as a trial juror. Colorado had a statute under which any person summoned in any way to serve as a juror in any district or county court who shall have served as a juror in either of said courts, at any prior term within one year next preceding 'shall have a sufficient excuse for such person from service, and may also be ground for challenge.' C.L.Colo.1921, § 5882.
The persons who had been summoned to attend as jurors at the specified term of court but who did not sit in the trial of any case were challenged under the above statute. The court held that said persons had not served within the meaning of the above statute unless they had actually sat in the trial of a case. In support of its conclusion the Colorado court cited a similar holding in the Kansas case of State v Lowe, 56 Kan. 594-597, 44 P. 20, holding that the juror must have sat as such in the trial of a case. The court also cited the Missouri case of State v. Rose, 271 Mo. 17, 195 S.W. 1013, holding the right of challenge to be limited to...
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