State v. Conner

• Decision Date: 02 February 1939
• Docket Number: 6585
• Parties: STATE, Respondent, v. EUGENE CONNER, Appellant
• Court: Idaho Supreme Court

89 P.2d 197

59 Idaho 695

STATE, Respondent, v. EUGENE CONNER, Appellant

No. 6585

Supreme Court of Idaho

February 2, 1939

JURIES AND JURORS - DISQUALIFICATIONS-CHALLENGES-MISDEMEANOR CASES-NUMBER OF JURORS-CONSTITUTIONAL LAW-SEARCH AND SEIZURE - EVIDENCE - SUPPRESSION OF-INCIDENTAL TO ARREST-DIRECTED VERDICT-JUDICIAL DISCRETION.

1. An information charging that defendant on certain dates at a certain place and wilfully and unlawfully established and used a certain building and place in and upon which to sell and to keep with intent to sell and give away alcoholic liquors, and that defendant did sell, keep with intent to sell, and give away whiskey and all other kinds of alcoholic liquors contrary to statute, was not demurrable. (Sess. Laws 1935, chap. 103, secs. 57, 58.)

2. An oral request that jury panel be excused and a new panel drawn because members thereof had tried two similar cases was properly denied as an insufficient challenge to panel under statute. (I. C. A., secs. 19-1905, 19-1906.)

3. That a venireman was a member of a jury which convicted a defendant in a case wherein evidence justified conviction does not disqualify him in another case against a different defendant, even if the evidence is similar and the witnesses are the same in both cases.

4. The grounds of challenge of jurors for cause are statutory. (I. C. A., sec. 19-1922.)

5. Error, if any, in sustaining challenge of juror who testified on his voir dire that relation of attorney and client had existed between him and defendant's attorneys, but that he was uncertain whether it still existed, was not prejudicial.

6. A party has no vested right to have a certain juror, although competent, try his case.

7. When challenging a juror for cause, statutory ground of challenge relied on should be pointed out, and it is not sufficient to say, "We challenge the juror for cause." (I. C. A sec. 19-1922.)

8. Under constitutional provision that in misdemeanor cases jury shall consist of not more than six, defendant charged with maintaining a nuisance contrary to statute relating to unlawful manufacture or sale of liquor was not entitled to trial by jury of 12 on ground that provision relates to minor misdemeanors and not to those which are indictable. (Sess Laws, 1935, chap. 103, secs. 57, 58; Const., art. 1, sec. 7 as amended, see Sess. Laws, 1935, p. 373.)

9. Evidence procured in violation of defendant's constitutional immunity from search and seizure is inadmissible and will be excluded if request for its suppression is properly made.

10. A proceeding to suppress evidence because procured in violation of a defendant's constitutional rights is separate from trial, and a defendant who has an opportunity to petition for suppression of evidence before trial must do so, or he waives his right.

11. An application to suppress evidence on ground that it was procured in violation of defendant's constitutional immunity from search and seizure, made after jury had been selected and before it was sworn to try cause, came too late.

12. Search and seizure made incidental to a lawful arrest is not prohibited as being unreasonable within the Constitution, and evidence seized is not thereby rendered inadmissible. (Const., art. 1, sec. 17.)

13. The giving of an instruction advising the jury to acquit an accused is discretionary with the trial court. (I. C. A., sec. 19-2023.)

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. In a criminal case a challenge to the jury panel can be founded only on a material departure from the forms prescribed in respect to the drawing and return of the jury in civil actions, or on the intentional omission of the sheriff to summon one or more of the jurors drawn. It must be taken before a juror is sworn, must be in writing and must plainly and distinctly state facts constituting the ground of challenge.

II. The fact that a venireman has been a member of a jury which has convicted a defendant, in a case wherein the evidence justified his conviction, does not disqualify him in another case, against a different defendant, even if the evidence be similar and the witnesses the same in both cases.

III. A party litigant has no vested right to have a certain juror, although competent, try his case.

IV. When challenging a juror for cause, it is well to have in mind the statutory requirement, as follows: "In a challenge for implied bias, one or more of the legal causes must be alleged. In a challenge for actual bias, it must be alleged that the juror is biased against the party challenging." It is not sufficient to say: "We challenge the juror for cause." The statutory ground of challenge relied on must be pointed out.

V. In cases of misdemeanor, of whatever grade, the jury shall consist of not more than six members.

VI. The rule is well settled in this state that evidence, procured in violation of defendant's constitutional immunity from search and seizure, is inadmissible and will be excluded if request for its suppression be timely made.

VII. A proceeding to suppress evidence because procured in violation of defendant's constitutional rights, is separate and apart from his trial and, when possible, must be made early enough to cause no interference with the progress of the trial, or will be held to have been waived.

VIII. Search and seizure, made incidental to a lawful arrest, is not prohibited as being unreasonable within the meaning of Idaho Constitution, art. 1, sec. 17, and evidence seized is not thereby rendered inadmissible.

IX. The giving, or refusing to give, an instruction advising the jury to acquit a defendant in a criminal case is discretionary.

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. T. Bailey Lee, Judge.

Appeal from judgment of conviction of maintaining a nuisance. Affirmed.

Judgment and order affirmed.

Chapman & Chapman, Lionel T. Campbell and Paul S. Boyd, for Appellant.

It was error for the court to refuse appellant's request for trial by a jury of twelve jurors, and to require him to go to trial to a jury of six, since the charge involved is that of an indictable misdemeanor. (Assignment of Error No. XIII; Collins v. State, 88 Ala. 212, 215, 7 So. 260; Moore v. State, 72 Ind. 358; Brown v. State, 16 Ind. 496; Allen v. State, 54 Ind. 461.)

It was prejudicial error for the court to require appellant to go to trial before a jury panel the members of which had just tried two other cases involving a similar charge, similar circumstances, and the identical witnesses on behalf of the state, as are involved in this case, even though they affect different defendants. (Assignments of Error I, II, III, IV, V, VI, VII, VIII, IX, X, and XI; Seaton v. State, 106 Neb. 833, 184 N.W. 890, 19 A. L. R. 1056; United States v. Smith, Federal Case No. 16342b; People v. Troy, 96 Mich. 530, 56 N.W. 102; People v. Mol, 137 Mich. 692, 100 N.W. 913, 4 Ann. Cas. 960, 68 L. R. A. 871.)

While the law recognizes the right of an arresting officer to make search and seizure incidental to an arrest, the law does not authorize an officer, armed with a warrant of arrest charging the defendant with an indictable misdemeanor committed a month prior to the arrest, to make a search and seizure of defendant's premises and property, particularly where the property is in his lawful possession, and is neither stolen nor contraband. (56 C. J. 1156, 1157; Hall v. Commonwealth, 138 Va. 727, 121 S.E. 154; Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575; Best v. State, 32 Okla. Cr. 89, 240 P. 159; United States v. Di Corvo, 37 F.2d 124; People v. Elias, 316 Ill. 376, 147 N.E. 472.)

J. W. Taylor, Attorney General, R. W. Beckwith, E. G. Elliott, Lawrence B. Quinn and D. W. Thomas, Assistant Attorneys General, for Respondent.

In a misdemeanor case defendant is not entitled to a jury of twelve but the constitutional jury of six men may try the case. (Art. 1, sec. 7, amended by ratification Nov. 6, 1934, 35 Session Laws, p. 373; secs. 17-111, 19-1802, I. C. A.; State v. Raaf, 16 Idaho 411, 101 P. 747.)

A defendant is not entitled to any particular juror and the scope of a voir dire examination of jurors in a criminal case is a matter that rests in the sound discretion of the trial court. (State v. Clark, 47 Idaho 750, 278 P. 776.)

Property found in possession of a person at time of lawful arrest, immediately following arrest, relevant and material to the prosecution may be retained by the prosecution and used against defendant at his trial even though there were neither warrant of arrest nor warrant of search and seizure at the time. (State v. Arnold, 52 Idaho 349, 15 P.2d 396; State v. Anderson, 31 Idaho 514, 174 P. 124; State v. Myers, 36 Idaho 396, 211 P. 440.)

MORGAN, J. Ailshie, C. J., and Givens and Holden, JJ., concur, BUDGE, J., concurring in the conclusion.

OPINION

MORGAN, J.

Sections 57 and 58 of chapter 103, Idaho Session Laws, 1935, page 246, are as follows:

"§ 57. The building, erection, or place, or the ground itself in or upon which the unlawful manufacture or sale, or keeping with intent to sell, or give away, any alcoholic liquors is carried on or continued or exists, and any vehicle or other means of conveyance used in transporting such liquor in violation of this Act, and the furniture, fixtures, vessels and contents, kept or used in connection therewith, are declared a nuisance and shall be abated as in this Act provided.

"§ 58. Whoever shall erect, establish, continue or use any building, erection or place for any of the purposes prohibited in the immediately preceding section, is guilty of maintaining a nuisance and upon conviction shall be punished by a fine of not less than three hundred...