State v. Jenkins

• Decision Date: 09 October 1884
• Citation: 4 P. 809,32 Kan. 477
• Parties: THE STATE OF KANSAS v. CHARLES JENKINS
• Court: Kansas Supreme Court

4 P. 809

32 Kan. 477

THE STATE OF KANSAS v. CHARLES JENKINS

Supreme Court of Kansas

October 9, 1884

Appeal from Osage District Court.

PROSECUTION for a violation of the prohibitory liquor law. The opinion states the material facts. From a judgment against him at the October Term, 1883, the defendant, Jenkins, appeals.

Judgment reversed and remanded.

Ellis Lewis, for appellant.

W. A Johnston, attorney general, and Edwin A. Austin, for The State.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

An information was filed against the appellant, charging him in eight counts with violating the prohibitory liquor law. The jury found the appellant guilty upon the first, second and third counts of the information, and returned a verdict of not guilty as to the other counts. He was sentenced to pay a fine of $ 150 upon the first count, $ 200 upon the second count, and $ 250 upon the third count, together with the costs of the prosecution, and ordered to be committed to jail until the fine and costs were paid.

It is claimed that the jurors for the term of court at which the defendant was tried were improperly drawn and summoned. The regular panel for the October term of court for 1883 -- the time of trial -- was drawn from the assessment rolls of 1883. The statute provides as follows:

"The trustee of each organized township, and the mayor of any city not included in the corporate limits of any township, shall, at his office, during the month of April of each year, make a list of persons to serve as jurors for the ensuing year as hereinafter provided." (Comp. Laws of 1879, ch. 54, § 1.)

Section 2 of said chapter provides:

"They shall select from those assessed on the assessment roll of the preceding year suitable persons having the qualifications of electors, and in making such selection they shall choose only those who are not exempt from serving on juries, and who are possessed of fair character and approved integrity, and in possession of their natural faculties, and not infirm or decrepit, and who are well informed, and free from legal exceptions."

By the statute, the jurors for the October term of court for 1883 should have been selected from those assessed on the assessment rolls of the preceding year (1882), and not taken from the assessment rolls of 1883. The question is therefore presented, whether the appellant's challenge to the array should have been sustained. It is insisted on the part of the appellant that as the statute prescribes from what persons the jury should be constituted, and who shall compose the jury, its provisions are mandatory. On the other hand, it is contended that the provisions relating to the drawing of jurors have not in view the benefit of litigant parties, and form no part of the system to procure an impartial jury; that they establish a mode of distributing jury duties among persons in the respective counties subject to that kind of service; that they merely provide for rotation in jury service, and are directory only. This latter view is supported by The State v. Massey, 2 Hill (S. C.) 379, and the opinion in Rafe v. The State, 20 Ga 60. There are also other authorities in the same direction. (Thompson & Merriam on Juries, §§ 47, 63, 134, 143.) We think the better rule, and the one most likely to do justice, is, that while mere irregularities in the drawing of jurors, or mere informalities on the part of the officers charged with the drawing, ought not to be a sufficient ground for sustaining a challenge to an array, yet it is otherwise where the essential provisions of the statute have been palpably disregarded. (The State v. Yordi, 30 Kan. 221, 2 P. 161; Thompson & Merriam on Juries, § 143.) Therefore, where the statute specifically prescribes the class or list of persons from which the jurors are to be selected, the failure to draw the jurors from such class or list is sufficient ground to quash the panel. (Jones v. The State, 3 Blackf. 37; Baker v. Steamboat, 14 Iowa 214; Anon. 1 Browne [Pa.] 121; McClosky v....