State v. Gunthorpe
Decision Date | 20 February 1970 |
Docket Number | No. 374,374 |
Citation | 81 N.M. 515,1970 NMCA 27,469 P.2d 160 |
Parties | STATE of New Mexico, Plaintiff-Appellee, v. Wendell D. GUNTHORPE, Defendant-Appellant. |
Court | Court of Appeals of New Mexico |
Defendant, Wendell D. Gunthorpe, was charged in the District Court of Bernalillo County by an indictment in two counts of the crimes (1) attempt to commit a felony, namely, murder, § 40A--28--1, N.M.S.A.1953, and (2) aggrevated assault, § 40A--3--2(A), N.M.S.A.1953. Trial to a jury resulted in a conviction as to both counts.
Appeal has been taken from the judgment upon the verdicts. Some of the points relied upon for reversal relate to both counts of the indictment. Others are applicable only to count one. Facts which we consider of importance to this decision will be considered under the points to which they relate.
At arraignment defendant entered a plea of not guilty, but reserved his right to challenge the indictment, and by motion thereafter presented he sought unsuccessfully to quash the indictment on the ground that the grand jury was not legally constituted and for that reason the indictment was voidable. Error is asserted in the denial of the motion. Insofar as material here, the motion alleges that the judge failed to comply with statutory requirements relating to the drawing and selection of the grand jury, and also failed to observe the constitutional provision (Art. II, Sec. 14) as to the number of persons required to constitute the grand jury panel.
The record discloses an order calling a grand jury for the September, 1968 term of the District Court of the county. The order provides:
'* * * that the names of 75 persons be drawn by this Court and the Clerk hereof at 10:30 A.M. on the 17th day of September, 1968, and that from the list of said persons twelve (12) Grand Jurors and 12 Alternates be chosen and qualified in open Court prior to the convening of the Grand Jury.'
Upon the appointed day the Judge and Clerk of the District Court drew 75 names from the jury box. A list was made disclosing the order in which the names were drawn. The record shows that of the 75 names so drawn, eight were not served by the sheriff; ten, although served, failed to appear at the appointed time and place, and thirty-four were excused from service by the judge; further, that twelve persons were accepted and qualified as the Grand Jury and at the same time twelve other persons whose names were drawn were accepted as alternate grand jurors. How the 12th alternate juror was selected is not shown.
The twelve persons selected for service upon the Grand Jury were those first drawn from the jury box excepting persons not served, those who did not appear and those who were excused by the Judge. The objections to these proceedings are: (1) that the trial court drew an excessive number of names from the jury box, (2) the trial court erroneously failed to record the reasons for excusing thirty-four persons from jury service, and (3) the Judge erroneously empaneled twelve alternate grand jurors in addition to the twelve empaneled for the Grand Jury.
Section 19--1--18, N.M.S.A.1953, now repealed, but effective at the time, provides:
* * *'
Article II, § 14 of the Constitution of New Mexico, provides that a Grand Jury shall be composed of such number not less than twelve as may be prescribed by law. This number has not been enlarged by legislative action.
The question as to whether a failure to comply with the requirements of the statute through drawing an excessive number of names from the jury box is fatal to the legality of the jury, requiring quashing the indictment, depends upon whether the statute relating to the number of names to be drawn is mandatory or merely directory. In determining whether words of a statute are mandatory or directory, the intention of the Legislature is controlling. State ex rel. Sun Co. v. Vigil, 74 N.M. 766, 398 P.2d 987 (1965); Ross v. State Racing Commission, 64 N.M. 478, 330 P.2d 701 (1958). 4 Anderson, Wharton's Criminal Law and Procedure, § 1698 (1957), contains the following statement relating particularly to the selection of juries.
* * *'
A case not strictly in point but bearing upon the question involved is State v. Leatherwood, 26 N.M. 506, 194 P. 600 (1920). This decision involving statutory provisions for the selection of petit jurors held that:
* * *'
See State v. Williams, 76 N.M. 578, 417 P.2d 62 (1966); also, People v. Lieber, 357 Ill. 423, 192 N.E. 331 (1934). That the members of the grand jury were composed of the names drawn from the jury box in the presence of the persons designated by statute, were properly sworn and qualified for jury service and were wholly impartial as between the State and defendant is unquestioned, nor is there any showing of fraud or prejudice to defendant. The method of selection of the members of the grand jury, as has been pointed out, was not by choice, but was the result of chance. Since the portion of the statute involved is directory only, deviations from its provisions without a showing of fraud or prejudice to the defendant do not furnish a basis for quashing the indictment.
We find no merit to the contention that the failure of the judge to record reasons for excusing a number of persons from jury service constitutes a ground for quashing the indictment. Defendant has not cited nor has our search revealed a statute or other rule of law imposing such duty upon the judge. No sufficient reason has been advanced...
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