State v. Clift

• Decision Date: 25 January 1969
• Docket Number: No. 45232,45232
• Citation: 202 Kan. 512,449 P.2d 1006
• Parties: The STATE of Kansas, Appellee, v. Chester Lee CLIFT, Appellant.
• Court: Kansas Supreme Court

Page 1006

449 P.2d 1006

202 Kan. 512

The STATE of Kansas, Appellee, v. Chester Lee CLIFT, Appellant.

No. 45232.

Supreme Court of Kansas.

Jan. 25, 1969.

Rehearing Denied Feb. 28, 1969.

Syllabus by the Court

(1) Strictly speaking-the excusing of jurors from reporting for duty is a judicial function to be exercised only by the court.

(2) Where a number of persons summoned for jury duty were excused by the bailiff beforehand for statutory reasons-in order to predicate reversible error thereon it is necessary that a defendant establish that his substantial rights were prejudicially affected by such procedure.

(3) On appellate review of a criminal prosecution this court must render judgment without regard to technical errors or irregularities which do not affect the substantial rights of the parties.

(4) Although the law requires that a jury panel be truly representative of a cross-section of the community in which a defendant is to be tried, a negro defendant in a criminal case is not constitutionally entitled to be tried by a jury on which there is a member, or members, of his race, and he is entitled to relief only upon proof presented by him which discloses a purposeful discrimination to exlude members of a class from the jury panel.

(5) One who has no interest in the premises in question-either of a proprietary or possessory nature-has no standing to invoke the constitutional guaranty of immunity from illegal search and seizure.

(6) In an appeal from a conviction of robbery in the first degree, the record is examined and, all as set forth in the opinion, it is held that the trial court did not err in any of the particulars specified.

Ronald R. McEnulty, Wichita, argued the cause and was on the brief for appellant.

Richard K. Hollingsworth, Deputy County Atty., argued the cause and Robert Londerholm, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief for appellee.

PRICE, Chief Justice.

Defendant appeals from a conviction of robery in the first degree as defined by K.S.A. 21-527.

No contention is made as to the sufficiency of the evidence to sustain the conviction. A detailed recital of the facts is therefore unnecessary.

In brief-defendant was positively identified as the man who held up two cashiers of a supermarket and robbed them of approximately $500.00. One of the eye-witnesses was a nephew of one Bennett-at whose home defendant had been staying for a week or two. Apparently 'things were getting pretty hot'-and defendant and Bennett shortly departed for Oklahoma. At the time of the robbery defendant was wearing black trousers and a white T-shirt. When he departed for Oklahoma he left the pants and shirt in a closet at the Bennett house. During their investigation police officers went to the Bennett home. Mrs. Bennett gave the pants and shirt to them.

Only two contentions are made in this appeal.

The first concerns the panel of jurors in attendance-and it is argued defendant's 'challenge to the array' was erroneously overruled.

The basis of this contention is two-fold.

It appears that of the list of jurors regularly summoned for duty several were excused beforehand by the court for health, family or hardship reasons. It also appears that nine or ten were excused by the bailiff over the telephone for like reasons.

K.S.A. 43-118, being a general statute relating to jurors, provides that any person may be excused from serving on a jury when it shall appear to the court that the interests of such juror or those of the public will be materially injured by his attendance, or when the state of his own health or that of any member of his family requires his absence.

K.S.A. 43-154, relating to the drawing, summoning and attendance of jurors in Sedgwick county, provides in subsection (l) thereof that--

'Jurors shall appear on the day and time summoned before the judge of the court designated in the summons, and such judge shall determine all excuses of such persons from jury service according to the best interest of the public, and the individual or his family. Those not excused shall be retained as the panel for said division of the court.'

While K.S.A. 20-312, a general statute relating to the duties of a bailiff-and K.S.A.1968 Supp. 20-614a, relating to the duties of a bailiff in a county the size of Sedgwick-authorize and empower a bailiff to perform and carry out all duties which may be required of him by the judge-nowhere in the statutes does it appear that a bailiff is authorized to excuse jurors summoned for duty or that the judge may delegate such authority to him. Defendant argues that the excusing of jurors is strictly a judicial function which can be performed only by the judge and that because of the procedure shown here the end result amounted to more than a mere 'irregularity' and that his challenge to the array was erroneously denied, citing State v. Jenkins, 32 Kan. 477, 4 P. 809.

As a practical manner we venture to say that there have been instances in perhaps every judicial district in this state in which prospective jurors have been excused from reporting by the bailiff or court reporter-all with the approval of the judge. In a strict technical sense, however, we agree with defendant's contention that the excusing of jurors is a judicial function to be exercised only by the judge. Notwithstanding our disapproval of the practice shows here-it does not necessarily follow that the challenge to the array was well taken. In the Jenkins case, above, jurors were selected from sources other than authorized by statute, and the case is not in point. Here, all jurors remaining on the panel-having been selected as provided by statute-were qualified to...