State v. Carlson
| Decision Date | 10 December 1900 |
| Citation | 62 P. 1016,39 Or. 19 |
| Parties | STATE v. CARLSON. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Multnomah county; M.C. George, Judge.
Andrew Carlson was convicted of assault and robbery, and appeals. Affirmed.
C.J. Schnabel, for appellant.
D.R.N Blackburn, Atty. Gen., for the State.
The defendant, Andrew Carlson, was convicted upon an indictment charging him with the crime of assault and robbery, being armed with a dangerous weapon, alleged to have been committed in Multnomah county, November 4, 1899, by putting C.E Harding and C.H. Knudson in fear, and taking from each a watch and certain gold, silver, and nickel coins; and having been sentenced therefor to imprisonment in the penitentiary for the term of 14 years, he appeals.
Within the time allowed to plead, he filed an affidavit to the effect that one William Connor was a member of the grand jury when the indictment was found; that at the time he was impaneled as such he was not, and for a year immediately preceding had not been, an inhabitant or taxpayer of said county, but was and had been a resident of Spokane, Wash.; and thereupon moved the court to set aside the indictment on the ground that it was found by a grand jury rendered incompetent by the impaneling of a disqualified person. He also filed the supplemental affidavit of one W.D. Freeman, which shows that on January 31, 1900, he examined the assessment and tax rolls of Multnomah county for the preceding year, and was unable to find any property assessed to Connor; but that in 1898 William Connor and Henrietta Connor,--the latter presumably his wife,--were assessed with certain real property in said county valued at $300, and allowed an exemption in that sum, and that in 1899 said real property was assessed to one May D. Engalls. The district attorney filed the counter affidavit of Connor to the effect that he was, and for 20 years prior thereto had been, a resident of said county, but in May, 1899, he went to Spokane to make a visit, with no intention of changing his residence; that on the 28th of that month, being afflicted with appendicitis, he submitted to a surgical operation, which kept him in a hospital until August 24, 1899, and as soon as he was able to travel he left said city, arriving in Multnomah county on the 6th of the following month. The defendant filed an affidavit in reply to the effect that from October, 1898, to September, 1899, Connor was identified with a corporation engaged in constructing irrigating ditches in the vicinity of Spokane, during which time he stated to J. Poole, A. Chase, and J.H. Ray, residents of said city, that he had become a permanent inhabitant thereof; that, after he recovered from said operation, he was advised by his physician that a change of climate was necessary, whereupon he returned to Multnomah county; and that the facts stated in this affidavit could be substantiated by the depositions of said Poole, Chase, and Ray. He thereupon moved the court to appoint some person at Spokane to take the same, and also to require Connor to appear before a notary public in Multnomah county to give his deposition respecting the matters set forth in his affidavit. The court, having denied the latter motion, refused to set aside the indictment, whereupon the defendant excepted, and his counsel contends that error was committed in these respects.
Where the statute permits a person accused of the commission of a crime to challenge the panel, it has been held that, if a grand juror is incompetent, the defendant is not required to show affirmatively that the juror participated in the deliberations of the grand jury when the indictment was found ( State v. Smith, 80 N.C. 410); that a motion made at the proper time to set aside an indictment on the ground that one of the grand jurors did not possess the necessary qualifications affords a good plea in abatement (10 Enc.Pl. & Prac. 355; State v. Tilly, 8 Baxt. 381; People v. Wintermute, 1 Dak. 63, 46 N.W. 694; State v. Parks, 21 La.Ann. 251; Doyle v. State, 17 Ohio, 222; Barney v. State, 12 Smedes & M. 69; State v. Wilcox [N.C.] 10 S.E. 453; State v. Jacobs, 6 Tex. 99; United States v. Hammond, 2 Woods, 197, Fed.Cas. No. 15,294); that the proper time to interpose such a motion is after arraignment, and before a demurrer has been filed, or a plea entered ( State v. Pool, 20 Or. 150, 25 [39 Or. 23] P. 375; State v. Witt, 33 Or.
594, 55 P. 1053); and, it being insisted that the defendant's motion presented this question to the attention of the trial court, we will examine the alleged error of which he complains.
The first question to be considered is whether Connor possessed the necessary property qualification to render him a competent grand juror. The county assessor each year is required to set down in the assessment roll the names of all the taxable persons in his county. Hill's Ann.Laws Or. § 2770. It is made the duty of the county court of each county, at its first term in each year, to make from the last preceding assessment roll of the county a jury list containing the names of not less than 200 nor more than 600 persons. Id. § 952, and section 954, as amended Feb. 21, 1893 (Sess.Laws 1893, p. 84). The county clerk is required to keep a jury box, and on receiving the jury list he must destroy all ballots remaining in the box, and prepare and deposit therein separate ballots containing the name of each person embraced in said list. Id.§ 956. Not less than 10 nor more than 20 days before holding a term of the circuit court at which the jurors are required to serve, 31 persons shall be drawn at the office of the county clerk from the names deposited in the jury box, and from the number so selected who are in attendance upon the court 7 are drawn by lot as grand jurors. Id. §§ 957-959, 1230. It is admitted that Connor's name was entered on the assessment roll of Multnomah county for 1898 by the assessor as a taxable person of said county. Freeman's affidavit shows that the real property assessed to him and his wife was valued at $300, and they were allowed an exemption from taxation of that sum. The statute exempts from taxation personal property of every householder to the amount of $300. Id. § 2732, subd. 8. If the liability to pay a tax were a prerequisite to qualify a person for the performance of jury duty, the exemption noted is not applicable to an assessment of real property, and Connor's name was, therefore, properly entered on the assessment roll of 1898 as a taxable person of said county. It does not appear when he was drawn as one of the panel of jurors, but, as the term of court at which the indictment was found was appointed by law, and convened Monday, January 8, 1900, his selection must have occurred not less than 10 days prior thereto, or not later than December 29, 1899, thus conclusively showing that his name was deposited in the jury box as taken from the list made by the county court at its first term in 1899 from the last preceding assessment roll of the county. It also appears from Freeman's affidavit that the land so assessed to Connor and his wife in 1898 was assessed the next year to another person. If it be assumed that an assessment of such property to any person affords evidence of his ownership thereof, the transfer of the title by Connor and wife after his name was entered in the assessment roll of Multnomah county as the owner thereof would not disqualify him as a juror. State v. Middleton, 5 Port. (Ala.) 484.
The next inquiry is whether, after a grand juror has been drawn and impaneled in pursuance of a constitutional statute evidence is admissible to show that he does not possess the qualifications prescribed by law. Before accepting a person drawn as a grand juror, the court must be satisfied that such person is duly qualified to act as such juror; but, when drawn and found qualified, he must be accepted, unless the court, on the application of the juror, and before he is sworn, shall excuse him from such service for any of the reasons prescribed by chapter 12 of the Code of Civil Procedure. Hill's Ann.Laws Or. § 1233. No challenge shall be made or allowed to the panel from which the grand jury is drawn, nor to an individual grand juror, unless when made by the court for want of qualification as prescribed. Id. § 1234. The statute having thus imposed upon the court the duty of ascertaining the qualifications of grand jurors before accepting them, and prohibited all persons from challenging the panel or...
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