State v. Jackman

• Decision Date: 23 September 1909
• Docket Number: 1,815.
• Parties: STATE v. JACKMAN.
• Court: Nevada Supreme Court

104 P. 13

31 Nev. 511

STATE v. JACKMAN.

No. 1,815.

Supreme Court of Nevada

September 23, 1909

Appeal from District Court, Esmeralda County.

Albert T. Jackman was convicted of murder, and appeals. Affirmed.

See also, 29 Nev. 403, 91 P. 143; 100 P. 769.

Thompson Morehouse & Thompson, for appellant. R. C. Stoddard, Atty Gen., and Leonard B. Fowler, Deputy Atty. Gen., for the State.

NORCROSS C.J.

Appellant upon a second trial was convicted in the First judicial district court in and for Esmeralda county of murder in the second degree and sentenced to life imprisonment. From the judgment, and from an order denying this motion for a new trial, this appeal is taken. This case was heretofore before this court upon an appeal from a judgment of murder in the first degree; the case being reported in 29 Nev. 403, 91 P. 143.

The case was regularly set down for trial on the 28th day of September, 1908, and continued by order of court until the following day. The court having denied the motion of both parties for a further continuance, the selection of a jury to try the cause was undertaken. At the close of the day the jury list in the courtroom trial jury box was exhausted; seven jurors having in the meantime been passed, subject to peremptory challenge. Thereupon the court continued the case until the 7th day of October, 1908, at the hour of 2 o'clock p. m. Upon the arrival of the time specified in the last aforesaid adjournment, an additional venire of 150 names having been returned by the sheriff, the case was called for further proceeding. At this point counsel for defendant objected to proceeding with the case upon the ground that the court was then without jurisdiction to proceed with the trial, for the reason that the trial judge had, during the time intervening between the adjournment on the 29th day of September and the 7th day of October, left the county of Esmeralda, and gone to another county in his district, to wit, Ormsby county, and had opened court therein and heard and determined a number of judicial proceedings pending therein, which act upon the part of the judge it was contended, and is now contended, operated to end the term of court theretofore held in Esmeralda county and to discharge the seven jurymen passed as aforesaid and all jurymen appearing upon the venire made returnable upon that date; that the court was without jurisdiction to proceed with the trial until another term of court had regularly been convened in the manner required by law.

It is not disputed that the trial judge did the act alleged; that he in the meantime held a session of the First judicial district court in and for the county of Ormsby, which last-named county, together with Esmeralda county and three others, then constituted the First judicial district, presided over by one judge. Section 7 of article 6 of the Constitution of the state provides: "The times of holding the Supreme Court and the district courts, shall be as fixed by law. The terms of the Supreme Court shall be held at the seat of government, and the terms of the district courts shall be held at the county seats of their respective counties. ***" While the act of the Legislature of January 26, 1865, entitled "An act concerning the courts of justice of this state, and judicial officers" (Comp. Laws, §§ 2508-2565), prescribed four terms in each year for the Supreme Court, which provision is still in force, no similar provision as to district courts now exists. Prior to an act of the Legislature passed in 1885 (St. 1885, p. 60, c. 56, § 5; Comp. Laws, § 2571) the terms of the district courts had been definitely fixed. The act last above mentioned provided that "the district court shall always be open for the transaction of business." By an act entitled "An act concerning the district courts of the state of Nevada and the judges thereof," approved March 13, 1895 (St. 1895, p. 56, c. 59; Comp. Laws, § 2573), it is provided, among other things: "If the public business requires, each judge may try causes and transact judicial business in the same county at the same time. Each judge shall have power to transact business which may be done in chambers at any point within the state, and court shall be held in each county at least once in every six months, and as often and as long as the business of the county requires. All of this section is subject to the provision that each judge may direct and control the business in his own district, and shall see that it is properly performed."

In the case of State v. Atherton, 19 Nev. 332, 347, 10 P. 901, 911, this court, refering to the provisions of section 9 of the act of 1885, supra, said: "The provision in section 9 that the courts shall be held in each county at least once in every six months is a compliance with section 7, art. 6, of the Constitution, which declares that 'the times of holding the *** district courts shall be as fixed by law.' The Constitution does not require the law to specify when the terms of court shall be held. Its language is that 'the terms of the district courts shall be held at the county seats of their respective counties.' ***" The said section 9, supra, was repealed by the said act of 1895, supra; but the provision requiring that "court shall be held in each county at least once in every six months" was retained in the latter statute. In the case of Horton v. New Pass Co. 21 Nev. 184, 194, 27 P. 1018, 1019, this court said: "Under the system prevailing in this state, there are no terms of the district court. The courts are always open, and the sessions are held at the convenience of the judges, and as the business may require." Under the statutes of this state now in force, counsel for appellant's contention that terms of the district court exist, and that the fact of the trial judge going into another county in his district, where he opened and held a session of court therein, operated as an adjournment of the term in Esmeralda county, so as to leave the court without jurisdiction then to proceed with the case, we think, is without merit.

If a jury had been impaneled and sworn to try the case, and especially if the trial had so far advanced that the case was submitted to the jury for its deliberation, a different situation might be presented, if the judge should leave the county where the trial was in progress, and go into another county and open and hold court; but whether or not this would amount to a mistrial is not necessary now to consider. This is the situation presented in the leading case relied upon by counsel for appellant. In re Patzwald, 5 Okl. 789, 50 P. 139. Section 399 of our criminal practice act (Comp. Laws, § 4364) provides: "While the jury are absent, the court may adjourn from time to time, as to other business, but it shall nevertheless be deemed to be open for every purpose connected with the cause submitted to the jury, until a verdict be rendered or the jury discharged." Section 400 of the same act (Comp. Laws, § 4365) provides: "A final adjournment of the court discharges the jury." These sections refer to the situation existing after the jury has been impaneled and sworn and have the case under deliberation.

At the time the trial judge left Esmeralda county, and went to Ormsby county, and held a session of court, the trial of defendant had not in fact begun. Strictly speaking, the trial does not begin until the jury is impaneled and sworn. Comp Laws, § 4320; U.S. v. Curtis, 4 Mason, 232, 25 Fed. Cas. 726; Commonwealth v. Soderquest, 183 Mass. 199, 66 N.E. 801; Hunnel v. State, 86 Ind. 431; Alexander v. Commonwealth, 105 Pa. 1; Vol. 8 Words and Phrases, 7099 et seq., and authorities cited. In U.S. v. Curtis, supra, Justice Story, after considering the question at some length, concludes: "In short, so far as authorities, or reasoning, or forms go, there can be no legal doubt that by the term 'trial' is generally intended, in the law, the actual trial of the prisoner by the jury. The Constitution of the United States, too, in the sixth amendment, which provides that the accused shall enjoy the right to a speedy and public trial by jury, manifestly uses the term in the same sense; and, indeed, it pervades the general structure of our laws." In the case of Alexander v. Com., supra, the court said: "After the names of 49 jurors had been drawn from the box, which had contained 60, and 8 jurors had been separately sworn, it appeared that 11 of the paper pellets had been clandestinely removed, whereupon the court directed the...