State v. Bristol

• Decision Date: 30 November 1898
• Citation: 55 P. 107,21 Mont. 578
• Parties: STATE v. BRISTOL.
• Court: Montana Supreme Court

55 P. 107

21 Mont. 578

STATE v. BRISTOL.

Supreme Court of Montana

November 30, 1898

Appeal from district court, Teton county; D. F. Smith, Judge.

Henry N. Blake, James Sulgrove, and J. G. Bair, for appellant.

C. B Nolan and J. E. Erickson, for the State.

PER CURIAM.

The defendant, Cicero L. Bristol, convicted of embezzlement appeals from an order of the district court of Teton county denying a new trial, and from the judgment of his conviction. It appears that on January 2, 1897, the Honorable C. W Pomeroy, judge of the Eleventh judicial district court comprising the counties of Teton and Flathead, duly made and caused to be filed an order fixing March 8th, May 24th August 16th, and November 8th as the days on which the terms of court should commence in Teton county, for the year 1897. It further appears that on January 4th the Honorable D. F. Smith, who had meanwhile become judge of said district, made and caused to be filed an order purporting to revoke the one of January 2d, and fixing the commencement of said terms on January 25th, April 26th, July 26th, and October 11th. Pursuant to the last-mentioned order, the July term of the district court of Teton county began on the 26th of that month; and, under an order of the court dated July 26th, a jury was drawn and summoned to serve during the term. The July term was adjourned to October, 1897, when the defendant was tried by the jury so drawn and summoned. He interposed a challenge to the panel, upon the ground that there had been a material departure from the law in the drawing and return of the jury, in that the time designated for the attendance of the jury was not any term of court fixed by the order of January 2d. The challenge was disallowed, defendant excepting.

Was there a material departure from the requirements of the law in respect of the drawing and return of the jury? Section 17 of article 8 of the constitution contains a provision to the effect that the judge of each district where two or more counties are united shall, until otherwise provided by law fix the term of court. Section 38 of the Code of Civil Procedure reads as follows: "The district court of each county which is a judicial district by itself has no terms, but must be always open for the transaction of business, except on legal holidays and non-judicial days, and must hold its sessions at the county seat. Juries for the trial of causes must be called on the first Monday of every alternate month, if the judge so direct, and oftener, if public business requires. In each district where two or more counties are united, the judge thereof must fix the terms of court in each county in his district, which must be held at the county seat, and there must be at least four terms a year in each county. The judge of such district court must, within ten days after the taking effect of this Code, and thereafter, within ten days after...