State v. Bolln

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtCORN, JUSTICE.
Citation70 P. 1,10 Wyo. 439
Decision Date12 September 1902
PartiesSTATE v. BOLLN, ET AL. IN RE DRAWING AND SUMMONING OF PETIT JURY

70 P. 1

10 Wyo. 439

STATE
v.
BOLLN, ET AL.

IN RE DRAWING AND SUMMONING OF PETIT JURY

Supreme Court of Wyoming

September 12, 1902


ON Reserved Questions from the District Court, Laramie County, HON. RICHARD H. SCOTT, Judge.

These two cases were heard and determined together. On the first day of the May term, 1902, of the District Court of the County of Laramie an order was entered for the drawing of a petit jury, and the same was drawn from the box provided by law. On the same day the prosecuting attorney for the county filed a motion to quash the jury list and for the issuance of an open venire to secure a petit jury for the term. The motion was filed generally under the title "In the Matter of the Trial Jury for the May, 1902, Term." It was also filed in the case of The State v. Ehler Bolln and John Ulrich, a criminal case. The prosecuting attorney moved that the questions arising be reserved for the decision of the Supreme Court. Thereupon the questions were reserved as stated by Mr. Justice Corn, who delivered the opinion of the court, as follows:

"1. Is Chapter 109 of the Session Laws of 1901, purporting to amend and re-enact Sections 3346 and 3350 of the Revised Statutes of Wyoming, relating to the drawing of jurors, and also amending Sections 3351, 3352 and 3353 of the Revised Statutes of Wyoming, a valid law? Or is it void, for the reason that the bill or act in question was not signed by the Speaker of the House in the presence of the House, or for the reason that the journal for the House of Representatives of the Legislative Assembly of 1901 does not show that said bill or act was signed by the Speaker of the House in the presence of the House?

"2. Is it necessary that the County Assessor of the County of Laramie should ascertain and enter upon the assessment roll of each year the information required by Sections 3387 and 3390 of the Revised Statutes of Wyoming, relating to the qualifications of jurors? And is it necessary that the chairman of the Board of County Commissioners, the County Treasurer and the County Clerk should select the jury list only from the names of such persons so entered on the assessment roll?

"3. Is it necessary, under the provisions of Sections 3345 and 3346, Revised Statutes of Wyoming, and of the amendment to Section 3346 by Chapter 109 of the Session Laws of 1901, that the officers therein named should make a list of all persons residing in the County of Laramie as the list of trial jurors for the ensuing year, who possess the qualifications for jurors otherwise prescribed by the statutes of this State? Or may such officers select any number of persons that they may choose to select, or may said officers select only such persons as they may believe to possess the qualifications of jurors, or is it incumbent upon said officers to select the names of all of the qualified jurors throughout the body of the county?

"4. Does the list of names selected by the officers on January 13th, 1902, comply with the provisions of Section 3346, Revised Statutes of Wyoming, as the same is amended by Chapter 109, Session Laws of 1901?

"5. Was it within the constitutional power of the Legislature of this State to enact Section 3346 of the Revised Statutes of Wyoming, and can the Legislature of this State permit the officers named, or any officers, to select as jurors, or to select a list of jurors, otherwise than from the entire body of the county?

"6. Can the Legislature leave it to the discretion of any set of officers or any person or persons to select a list of jurors at their own discretion, or is it incumbent upon the Legislature to require such list to be selected from the entire body of the county?

"7. Are Sections 3357 and 3358, Revised Statutes of Wyoming, unconstitutional for the reason that there is designated a five-miles limit from which jurors are to be drawn, as specified in those sections, and has the Legislature of this State the power to prescribe any limit within which jurors are to be summoned when such limit is not co-extensive with a district ascertained by law?

"8. Are Sections 3345, 3346, 3347, 3348 and 3349, and Sections 3350, 3351, 3352 and 3353, as amended by Chapter 109, Session Laws of 1901, and Sections 3354, 3355, 3356, 3359, 3360, 3362, 3363, 3364, 3365, 3366, 3367, 3368, 3369, 3370, 3371, 3372, 3373, 3374, 3375 and 3376, so connected with 3357 and 3358, Revised Statutes of Wyoming, as to form a part of the same system, and can they be complied with without also complying with the provisions of Sections 3357 and 3358, and are they, therefore, unconstitutional and void, or are any of said sections unconstitutional and void, and, if so, what ones? And what ones are good and valid?

"9. In case any of said sections are unconstitutional and void, or in case all of said sections are unconstitutional and void, has this court the power to issue an open venire directed to the sheriff for the summoning of a petit jury for the trial of cases pending before this court?"

J. A. Van Orsdel, Attorney General, and W. R. Stoll, County and Prosecuting Attorney for Laramie County, for the State.

The method pointed out by the statute for the impaneling of a jury must be followed, but where this has been done and there is still no jury, or the jury is for any reason incomplete, the court has inherent power to issue an open venire for the impaneling of the jury. The same is likewise true where for any cause whatever there is either an incomplete jury or no jury at all. This power is one of the common law powers of the court, and there being in this State no provision of the law as to what is to be done when such a condition of affairs arises, and the issuing of an open venire not being prohibted, our courts are vested with inherent or common law power to summon a common law jury. (R. S., Sec. 3350; 1 Thomp. Tr., Secs. 23-26, 20; Thomp. & Mer. on Jur., Sec. 79 et seq.; 17 Ency. L., 1191-1195; Clawson v. U.S. 114 U.S. 477; U. S. v. Clawson, 4 Utah, 34; Carter v. Ter., 3 Wyo., 193; Mackey v. People, 2 Colo., 13; Beery v. U.S. id., 192; Wilson v. People, 3 id., 325; Straughn v. State, 16 Ark. 37; Wilburn v. State, 21 id., 198; Stone v. People, 2 Scam., 326; Borelli v. People, 164 Ill. 549; U. S. v. Hill, 1 Brock., 156; Eastham v. Holt, Judge, 43 W.Va. 599; Com. v. Cressinger, 193 Pa. St., 326; State v. Kellogg (La.), 29 So. 285; Simmons v. Cunningham (Idaho), 39 P. 1109; Chumasero v. Potts, 2 Mont., 242; State v. Holmes, 63 N. C., 18; see also 12 Ency. Pl. & Pr., 393-410, 273-276.)

Under the provisions of Sections 9 and 10, Art. 1 of our Constitution, the jury there referred to is a common law jury. (People v. Powell, 87 Cal. 348; Brown v. State, 62 N. J. L., 666; State v. Slover (Mo.), 36 S. W., 50; State v. McClear, 11 Nev. 39; Opinion of Justices, 41 N. H., 550; State v. Hart, 19 Utah 438; First Nat'l Bank v. Foster, 9 Wyo., 159; Denver v. Hyatt (Colo.), 63 P. 403.)

At common law both the grand jury and the petit jury were summoned by the sheriff in the first instance, and no method of preparing the list before such summoning was done was ever in existence. Innovations on this method have been made by statute. Where the common law prevails, or where it has not been modified by statute in the matter of the impaneling of the jury, or where its power has not been taken away by statute, the old common law power of the court to direct a jury to be summoned from the county still exists, and especially does it exist in our State, where the common law still prevails, except where it is abrogated or modified by statute.

It is believed to be equally well established that the jury must come from the body of the county; that is to say, that jurors must come from the different parts of the county. It would be error to summon a jury from a particular part of the county. By this it is not meant that it would be error to try a defendant unless the jury as ultimately constituted was composed of jurors from all parts of the county, but that in selecting the regular panel of jurors, and in selecting the panel for the trial of a particular case, every reasonable endeavor shall be put forth to obtain a jury representing all parts of the county from which the jury as ultimately to be determined must be selected. It would, therefore, seem to follow that it is beyond the power of the Legislature to require a jury to come from a particular part of the county to the exclusion of all other parts of the county. (17 Ency. Law (2nd Ed.), 1120-1121; Const. of Wyo., Art. 1, Secs, 9, 10; Thompson & Merriam on Juries, Secs. 67, 79; 1 Thompson on Trials, Secs. 13-19; 3 Blackstone Com., 787-788; id., 791-2; 4 id., 1023; Olive v. State, 11 Neb. 1; Swart v. Kimball, 43 Mich. 443; Shaffer v. State, 1 How. (Miss.), 238; Hewitt v. Cir. Judge, 71 Mich. 287; People v. Hall (Mich.), 12 N. W., 665; Zanone v. State, 97 Tenn. 101; Hartshorn v. Patton, 2 Dall., 252; White v. Com., 6 Binn., 179; Peri v. People, 65 Ill. 17; Miller v. People, 183 id., 423; People v. Enright (Cal.), 66 P. 726; Spito v. State (Tex.), 24 S. W., 97; Trimble v. State (Dissenting Opin.), 2 Greene, 404; Gibbs v. State, 3 Heisk., 72; Wash. v. Com., 16 Gratt., 530; Gibbon v. Van Alstyne, 9 N. Y. Sup., 156; Babcock v. People (Colo.), 22 P. 817.)

Counsel cited the following cases as holding or indicating a contrary doctrine and commented upon them: Colt v. Eves, 12 Conn. 242; Ellis v. State, 92 Tenn. 85; People v. Hall, 48 Mich. 482; People v. Coughlin, 67 id., 466; State v. Kemp (Minn.), 24 N. W., 349; Gardiner v. People, 6 Park. Cr., 155; Wash. v. Com., 16 Gratt., 530; Poindexter v. Com., 33 id., 766; Baccigalupo v. Com., id., 807; Craft v. Com., 24 id., 602; Lawrence v. Com., 81 Va. 484; Trimble v. State, 2 Greene, 404; State v. Kellogg (La.), 29 So. 285; People v. Reigel (Mich.), 78 N. W., 1017; State v. Kyne (Kan.), 62 P. 728; Page v. Millerton (Ia.), 86 N. W., 440; State v. Craft (Mo.), 65...

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12 practice notes
  • Meldrum v. State, 788
    • United States
    • United States State Supreme Court of Wyoming
    • March 8, 1915
    ...The proceedings had in the selection of the jury list from which the jury was drawn in this case were invalid. (State v. Bolln, et al., 10 Wyo. 439, 471.) The foundation laid for the introduction of a transcript of the stenographer's notes of testimony of witnesses given at the former trial......
  • Horse Creek Conservation District v. Lincoln Land Co., 1983
    • United States
    • United States State Supreme Court of Wyoming
    • July 21, 1936
    ...must be considered as a limitation of the power of the officer." See, also Goodrich v. Peterson, 12 Wyo. 214, 74 P. 497; State v. Bolln, 10 Wyo. 439, 473-475, 70 P. 1; Bunten v. Rock Springs Grazing Ass'n., 29 Wyo. 461, 495, 215 P. 244; McClintock v. Ayers, 34 Wyo. 476, 488, 491, 245 P. 298......
  • State v. Eldredge, 1788
    • United States
    • United States State Supreme Court of Wyoming
    • May 2, 1933
    ...30-307, R. S. Qualifications of jury are set forth in Sec. 61-201, R. S. The jury commission did not comply with the law. State v. Bolln, 10 Wyo. 439. The court erred in refusing instruction numbered "A." State v. Moore, 56 S.W. 883; Sackett, Sec. 2689; Hale v. State, 26 So. 236; Mitchell v......
  • Patterson v. State, Nos. 83-261
    • United States
    • United States State Supreme Court of Wyoming
    • November 29, 1984
    ...have held that the parties to litigation to whom a jury trial is available have a right to a fair and impartial jury. See State v. Bolln, 10 Wyo. 439, 70 P. 1 (1902). The constitutional standard for fairness (Art. 1, § 10) "requires that the defendant have a panel of impartial jurors." Coll......
  • Request a trial to view additional results
12 cases
  • Meldrum v. State, 788
    • United States
    • United States State Supreme Court of Wyoming
    • March 8, 1915
    ...The proceedings had in the selection of the jury list from which the jury was drawn in this case were invalid. (State v. Bolln, et al., 10 Wyo. 439, 471.) The foundation laid for the introduction of a transcript of the stenographer's notes of testimony of witnesses given at the former trial......
  • Horse Creek Conservation District v. Lincoln Land Co., 1983
    • United States
    • United States State Supreme Court of Wyoming
    • July 21, 1936
    ...must be considered as a limitation of the power of the officer." See, also Goodrich v. Peterson, 12 Wyo. 214, 74 P. 497; State v. Bolln, 10 Wyo. 439, 473-475, 70 P. 1; Bunten v. Rock Springs Grazing Ass'n., 29 Wyo. 461, 495, 215 P. 244; McClintock v. Ayers, 34 Wyo. 476, 488, 491, 245 P. 298......
  • State v. Eldredge, 1788
    • United States
    • United States State Supreme Court of Wyoming
    • May 2, 1933
    ...30-307, R. S. Qualifications of jury are set forth in Sec. 61-201, R. S. The jury commission did not comply with the law. State v. Bolln, 10 Wyo. 439. The court erred in refusing instruction numbered "A." State v. Moore, 56 S.W. 883; Sackett, Sec. 2689; Hale v. State, 26 So. 236; Mitchell v......
  • Patterson v. State, Nos. 83-261
    • United States
    • United States State Supreme Court of Wyoming
    • November 29, 1984
    ...have held that the parties to litigation to whom a jury trial is available have a right to a fair and impartial jury. See State v. Bolln, 10 Wyo. 439, 70 P. 1 (1902). The constitutional standard for fairness (Art. 1, § 10) "requires that the defendant have a panel of impartial jurors." Coll......
  • Request a trial to view additional results

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