State v. Hurst

• Decision Date: 04 February 1907
• Citation: 123 Mo. App. 39,99 S.W. 820
• Parties: STATE v. HURST.
• Court: Missouri Court of Appeals

99 S.W. 820

123 Mo. App. 39

STATE v. HURST.

Kansas City Court of Appeals. Missouri.

February 4, 1907.

1. INDICTMENT—FORMAL REQUISITES—STATUTORY PROVISIONS.

An indictment objected to in proper form and time, on the ground that the record fails to show that the grand jury was sworn as provided by Rev. St. 1899, §§ 2486, 2489, is insufficient to support a conviction.

2. CRIMINAL LAW—APPEAL—PRESUMPTIONS—GRAND JURY—IMPANELING—OATH.

It cannot be presumed that the grand jury was sworn from the statement that it was impaneled.

3. SAME.

It cannot be presumed that the grand jury was sworn from the fact that the court charged and sent them to their labors, and would not have overlooked so important a feature as the administration of the oath.

4. SAME—RECORD—CONCLUSIVENESS.

The fact that the record is conclusive as to the verity of its recitals, and professes to state all that did occur, precludes the presumption that something not stated therein in fact occurred.

5. SAME—IMPEACHING AND CONTRADICTING.

The record as to facts relating to the organization of the grand jury cannot be contradicted or pieced out by recitals in the indictment.

Appeal from Circuit Court, Ray County; Samuel Davis, Special Judge.

Lelia Hurst was convicted of keeping a bawdy house, and she appeals. Reversed.

J. L. Farris, Jr., and Maurice G. Roberts, for appellant. Albert P. Hamilton and George W. Crowley, for respondent.

JOHNSON, J.

Defendant was indicted, tried, and convicted in the circuit court of Ray county on the charge of keeping a bawdy house, and, after her motions for a new trial and in arrest of judgment were overruled, appealed to this court.

Before arraignment, defendant, by plea in abatement and afterward by motion to quash the indictment, both of which the court heard and overruled, challenged the indictment on the ground, among others, that "the records fail to show that the grand jury returning the indictment against this defendant were sworn as the law directs." Defendant in support of plea and motion introduced the record entries relating to the constitution of the grand jury. That against which the objection is leveled is as follows: "Now comes Elmer Cates, sheriff, and returns into court the following grand jury venire [naming the persons summoned]. The following are duly impaneled as grand jurors to wit [naming them]. And said grand jury, after being duly charged by the court, the court appoints E. C. Goalder foreman, and the said grand jury retire to consider their presentments." It will be noticed the record does not affirmatively state that the jury was sworn, but it is argued by the learned counsel for the state that the word "impaneled" as employed in the entry, by reasonable construction, includes the act of taking the statutory oath; that the presumption should be indulged that the trial judge would not have charged the jury until it had been sworn, and that the presence in the indictment itself of the recital that the jury was sworn cures the defect in the record if any exists. The administration of the statutory oath is indispensable. Sections 2486 and 2489, Rev. St. 1899. Without it the grand jury is not a legally constituted body and has no authority to perform the important functions of that office. To properly safeguard life and personal liberty, the law deems it essential that, before approaching their work, the members of the jury should lay on conscience, in the most solemn form of declaration known to the law, the obligations embodied in the form of oath prescribed. Omission of this most important prerequisite invalidates the acts of the grand jury, and an indictment returned by it will not support a conviction provided objection be made thereto in proper form and time, as was done in the present case. State v. Mitchell (Mo. Sup.) 97 S. W. 561; Lyman v. People, 7 Ill. App. 345; Bruen v. People, 206 Ill., loc. cit. 424, 69 N. E. 24; 1 Bishop's Crim. Proc. § 856; 10 Ency. of Pl. & Pr. 379. The record must affirmatively show the performance of the prerequisites essential to the constitution of a legal grand jury; among them, the fact that the jury was sworn. The bare statement of that fact is sufficient, since from it the presumption will be indulged, nothing to the contrary appearing, that the oath was administered in the form and manner prescribed by the statute. Arthur v. State, 3 Tex. 403; Lyman v. People, supra; Bruen v. People, supra; Sullivan v. People, 156 Ill. 95, 40 N. E. 288; Yates v. People, 38 Ill. 527; Foster v. State, 31 Miss. 421; Abram v. State, 25 Miss. 589; Baker v. State, 39...