State v. Gut

• Decision Date: 01 January 1868
• Parties: STATE OF MINNESOTA v. JOHN GUT.
• Court: Minnesota Supreme Court

Page 315

13 Minn. 315

STATE OF MINNESOTAv.

JOHN GUT.

Supreme Court of Minnesota.

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Appeal from a judgment of the district court, Nicollet county.

Atwater & Flandrau, for the defendant.

F. R. E. Cornell, Atty. Gen., for the State.

WILSON, C. J.

The defendant was indicted for the murder of Charles Campbell, and, having been tried, was found guilty, on the thirty-first day of January, 1868, and sentenced on the first day of February following. Campbell was killed in Brown county on the twenty-fifth day of December, 1866, and the indictment was found on the eleventh day of September, 1867. The following-named counties are, and were at the time of the homicide, attached to Brown for judicial purposes, viz: Cottonwood, Murray, Pipe Stone, and Redwood. The legislature, by an act approved March 9, 1867, (Laws 1867, p. 156,) provided:

"Section 1. In all cases where one or more counties are attached to another for judicial purposes, the title of the district court for such counties shall hereafter be: The state of Minnesota, district court, for such judicial districts, counties of ______ and _____, (naming all the counties for which a common place for holding terms of the district court are by law provided,) and the clerk of the district court, sheriff, and county attorney of the county in which such court is held, shall perform the duties in said court that would have devolved upon them respectively had it been a court held exclusively for such county.

"Sec. 2. On the first Monday of April, A. D. 1867, and in January of each year thereafter, the board of county commissioners of each of the several counties of this state which are now by law attached to another county for judicial purposes, shall meet and select persons properly qualified for grand jurors and petit jurors, and the number of such persons so selected in each county, and all proceedings in the selection of the same, and in the making, signing, attesting, and delivering of the lists thereon, and in the drawing and summoning of grand and petit jurors for each term of the district court for such counties, shall conform to the regulations now provided by law, except that the lists of persons suitable for grand and petit jurors selected in each county shall be delivered to the clerk of the district court of the county in which such court is held, and that the grand jurors shall be drawn by the said clerk from all the names returned by the several counties collectively as those of persons suitable for grand jurors, and that the petit jurors shall in like manner be drawn from the names of those in like manner returned as those of persons suitable for petit jurors, and except also that the sheriff of the county in which such court is held, or his deputy, shall officiate in the summoning of the jurors so drawn, in the same manner that he would be required to do provided said court was held exclusively for his own county: provided, that in case any counties included within the provisions of section 1 of this act have no board of county commissioners, the board of county commissioners of the county in which such court is held shall select suitable persons from such counties for grand and petit jurors, and the same shall be selected and lists of them made, signed, attested, and delivered as provided above."

By section 3 it is provided that no action or prosecution pending in any court, the title of which is thus changed, shall be affected by the change, and that "such court shall also have the same civil and criminal jurisdiction over all the counties for which it is held that it would have had provided its title had not been changed."

Section 4 reads: "The judge of any district court the title of which is changed by the provisions of section 1 of this act, may, whenever he shall consider it to be in furtherance of justice or for the public convenience, order that the place for holding such court may be changed from the county now designated by law as the one in which such court shall be holden, to one of the other counties embraced in the title of such court."

Section 8 reads: "In case any of the counties included in the provisions of this act shall have no board of county commissioners, then the board of county commissioners and all the county officers of the county in which such court is holden, shall act as the board of commissioners and county officers of such county in the same manner, and returns from said counties shall be made to and through such officers in the same manner as is now required to be done in fully-organized counties: provided, that such board of commissioners shall not have power to levy any greater tax upon said counties than is sufficient to provide for the expenses thereof, including the laying out, opening, and improving of roads and buildings, and repairing of bridges therein."

On the twenty-fifth day of May, 1867, in pursuance of said law, the judge of the sixth judicial district, of which Brown county is a part, made an order in the following words:

"State of Minnesota, district court, sixth judicial district. Counties of Brown, Cottonwood, Murray, Pipe Stone, and Redwood:

"It appearing to my satisfaction that the furtherance of justice requires that the place of holding the general term of the district court in and for the counties above mentioned, should be changed from the county of Brown to one of the other counties above mentioned; now, therefore, be it, and it is hereby ordered that the place for holding the said court for the counties first above named, be and the same is hereby changed from the town of New Ulm and county of Brown, to the town and village of Redwood Falls, in the county of Redwood," etc.

Accordingly the court met in Redwood county, where the defendant was indicted for murder in the first degree. He objected to the change and to every step taken thereabout. Afterwards a change of venue to Nicollet county was ordered on his motion, where he was tried, convicted, and sentenced. He thereupon removed the cause to this court by appeal from the judgment.

We will now consider the alleged errors in the proceedings below. The grand jury in attendance having been illegally summoned, the defendant challenged the panel. The challenge was allowed and the jury discharged. The court thereupon ordered 23 grand jurors to be summoned on a special venire, and to the panel thus summoned the defendant interposed a challenge, which was disallowed.

It is not necessary to consider separately the grounds of this challenge, for a challenge to the panel of the grand jury can be allowed only for one or more of the causes mentioned in the statute; this challenge not being for any such cause was therefore properly disallowed. Gen. St. p. 637, § 14. The words of the statute are: "A challenge to the panel may be interposed for one or more of the following causes only." Neither this, nor any other provision of our statute, gives any support, we think, to the proposition that a challenge for other causes may be interposed to a jury summoned on a special venire. Whether this should be so it is not for us to say. There were, at different stages of the proceedings in the court below, to the Laws of 1867 above quoted, two objections urged, which may properly be considered at this point of our discussion, for if well taken they are radical and fatal.

The first is that the law is in conflict with section 6, art. 1, of the state constitution, which reads as follows: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the county or district wherein the crime shall have been committed, which county or district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel in his defence."

We are unable here to discover any conflict. The law does not change the district, but merely the place of trial in the district — which is not forbidden. Before its passage, jurors, for the trial of crimes committed in Brown county, were chosen from that county and the counties attached thereto for judicial purposes, (Comp. St. p. 143, § 29; Id. p. 154, § 7; Gen. St. p. 117, § 98,) the same district from which they are now chosen. The defendant, therefore, under this law, had a jury of the district in which the crime was committed, which district was previously ascertained by law.

The second objection to the law is that it is in conflict with section 27, art. 4, of the constitution, which reads: "No law shall embrace more than one subject, which shall be expressed in its title." The title of the law is in these words:

"An act to change the titles of and regulate the holding of courts for counties unorganized for judicial purposes, and to regulate the manner in which the counties to which they are attached for such purposes are to provide for the transaction of the business of counties which have no board of county commissioners." The defendant states his objection to the law on this ground, as follows: "In the body of the act the first seven sections are devoted to regulating the holding of the courts, etc. In the eighth section the whole subject of county business is provided for, with a limitation upon the powers of county commissioners," etc.

The objection, we think, cannot be allowed. Under section 8 jurors are drawn and returned from counties having no commissioners. That part of the law providing for such drawing and return is germane to the other portions thereof, which provide for the holding of the courts on which such jurors are to attend, and although greater power is perhaps conferred on the county officers than is necessary to enable them to draw or return jurors, we do not think the law is therefore void. This constitutional restriction must be...