State v. Johnson

• Decision Date: 11 October 1926
• Docket Number: 5918
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. FRANK H. JOHNSON, Defendant and appellant.
• Court: South Dakota Supreme Court

50 S.D. 388

210 N.W. 350

STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. FRANK H. JOHNSON,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Turner County, SD

Hon. L. L. Fleeger, Judge

#5918--Reversed

Buell F. Jones, Attorney General

Bernard A. Brown, H. A. Linstrom, Assistant Attorneys General, Pierre, SD

Attorneys for the State.

A. K. Gardner, Huron, SD

Bielski, Elliott & Marker, Sioux Falls, SD

Attorneys for Appellant.

Opinion filed October 11, 1926

CAMPBELL, J.

Defendant was indicted for misapplication of bank funds in violation of the provisions of section 8991, Code 1919; not having been held to answer before the finding of the indictment, defendant, upon his arraignment and before plea, moved to quash and set aside the indictment upon the following grounds, among others:

"That the grand jury purporting to find said indictment was not regularly constituted, in that the drawing thereof was not had and the notice of the drawing was not given as provided by law.

"That the grand jury purporting to find said indictment was not a regularly constituted grand jury, in that the drawing of said jury was not had in the presence of the officers designated by law or in the manner prescribed by law."

The court, after hearing evidence on the motion to quash denied the same, and defendant, subsequently pleading not guilty, was tried, convicted, and sentenced.

From the judgment of conviction, and from an order denying his motion for new trial, defendant now appeals and assigns error, inter alia, upon the denial of his motion to quash the indictment.

Section 5291, Code 1919, provides as follows:

"Drawing of Jurors--Meeting of Board. Within two days from the receipt of the order of the judge of the circuit court directing a jury to be summoned, the clerk of courts, or his deputy in case such clerk does not act, and the county auditor, county treasurer and sheriff, or a majority of them, shall meet at the county seat. In case the sheriff shall be disqualified by reason of being a party to any suit pending in the circuit court, or suspension from office, the coroner shall serve in place of the sheriff. The meeting of such officers shall be after notice in writing has been served the same day upon them, or their deputies, by leaving a copy of such notice in their respective offices in case any such officer or deputy is absent from the county seat. Such notice must be served by the clerk of courts, and must state the object of the meeting to be the drawing of names for jurors for the next term of the circuit court, and the place and time of such meeting."

In the instant case, at the time of drawing the jury, the sheriff was disqualified by reason of being a party to a suit pending for trial at the approaching term, and some effort was made to serve notice of the meeting for drawing the jurors upon the coroner. The coroner, however, was out of town, and no notice was in fact given to or served upon him, and the jurors for the term, including the grand jurors, were drawn by the clerk of courts, the county auditor, and the county treasurer. By virtue of the provisions of subdivision 4, § 4762 Code 1919, the appellant, not having been held to answer before the finding of the indictment was entitled to raise by his motion to quash any matter which would have been good ground for challenge to the panel. One of the grounds for challenge to the panel, as provided by subdivision 2, § 4660, Code 1919, is:

"That notice of the drawing of the grand jury was not given."

We have recently had occasion to consider these statutes in a very similar case, and have held that the statutes are mandatory, and that under the provisions of sections 4762 and 5291, Code 1919, when the sheriff, who was not disqualified to act in drawing the jurors, did not receive written notice of the meeting for that purpose, as provided by section 5291, and did not attend such meeting, a challenge to the panel was good and a defendant, not having been held to answer before indictment raising the matter by a motion to quash, was absolutely entitled to have the indictment set aside. State v. Fellows, 207 N.W. 477.

We still adhere to the views expressed in the Fellows case, and the Attorney General does not question the soundness of that decision, and, in fact, very frankly conceded upon the oral argument herein that the state could not expect to prevail in the instant case, unless this case could be distinguished from the Fellows case.

The state seeks to make such distinction by the following argument. In the Fellows case the sheriff was not disqualified. He was not served with notice, as required by section 5291, Code 1919, and did not attend at the drawing of the jurors, and the challenge to the panel was good. In the instant case neither the sheriff nor the coroner attended at the drawing of the jurors, and the clerk of courts testified that the sheriff was disqualified by reason of being a party to a pending action, and that he made an effort to serve notice upon the coroner, which effort was unsuccessful. The Attorney General then argues that under the provisions of section 5291 notice is never required to be served upon the coroner in the first instance, and that in the portion of that section reading as follows: "The meeting of such officers shall be after notice in writing has been served the same day upon them," the words "such officers" and "them" refer always and exclusively to the auditor, treasurer, and sheriff, and never to the coroner, even though the sheriff is disqualified; that, regardless of disqualification of the sheriff, he should nevertheless receive the notice, and should then come in and announce his disqualification and that there can be no duty of serving notice upon the coroner until the sheriff has first been notified and announced his disqualification. In support of hat view the...