State v. Jordan

• Decision Date: 18 January 1911
• Citation: 112 P. 1049,19 Idaho 192
• Parties: STATE, Respondent, v. FRED W. JORDAN, Appellant
• Court: Idaho Supreme Court

112 P. 1049

19 Idaho 192

STATE, Respondent, v. FRED W. JORDAN, Appellant

Supreme Court of Idaho

January 18, 1911

INFORMATION - MOTION TO QUASH - LOCAL OPTION - PROHIBITION DISTRICT-JURY-CHALLENGE TO PANEL-QUALIFICATION OF OFFICER SUMMONING-WHEN LAW TAKES EFFECT-INSTRUCTION.

(Syllabus by the court.)

1. The fact that other persons hold licenses, issued prior to the passage of the local option statute, which permit them to sell and dispose of intoxicating liquors, does not prevent the local option statute from operating after its adoption as provided therein, and prohibiting the sale and disposition of intoxicating liquors by all other persons.

2. The provision in the local option statute "that no license issued prior to the passage of this act should be terminated or in any manner affected by this act, or by any election held hereunder." does not prevent the creation of a county into a prohibition district upon the holding of an election, and the declaring of the result, as provided in said act.

3. Under the provisions of sec. 7824, Rev. Codes, when a panel is formed, or in part formed, from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground for challenge to a juror.

4. Under the provisions of sec. 7834, Rev. Codes, a challenge for implied bias may be taken upon the ground of being a witness for the prosecution, or subpoenaed as such.

5. Under the provisions of these sections a challenge to the special panel may be taken for the implied bias of the officer summoning the same, when it appears that he is a witness for the prosecution.

6. It is for the court to determine when the local option law becomes operative in any prohibition district created under its provisions, and the court is authorized to instruct the jury as to the date when such law becomes operative in such prohibition district.

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. Edward A. Walters, Judge.

Prosecution for sale of intoxicating liquors contrary to the local option statute. Judgment of conviction. Defendant appeals. Reversed.

Judgment reversed, and a new trial ordered.

James R. Bothwell, for Appellant.

"Panel includes within its definition jurors returned upon the special venire to fill out a deficiency after a regular panel has been exhausted." (People v. Coyodo, 40 Cal 586.)

Sec 1064, Kerr's Cal. Codes, is identical with sec. 7824. Rev. Codes of Idaho, except "or in part formed" is omitted.

The same test applies as to bias of elisor and talesmen. (People v. Teshara, 134 Cal. 542-544, 66 P. 798.)

If the intent was to interpose a challenge to a panel called on special venire, this could only be done on account of the bias of the officer who summoned them, which would be good ground of challenge to a juror. (People v. Oliveria, 127 Cal. 376, 59 P. 772, and cases cited.) These cases recognize the right to challenge a panel in the exact words of the statute. (People v. Fellows, 122 Cal. 233, 54 P. 830, and cases cited.)

If L. M. Zug could not sit as a juror because of implied bias set forth by the statute, he certainly, under sec. 7824, could not summon jurors that were not subject to challenge for implied bias. (People v. Coyodo, supra.)

"It is a general rule that in proceedings under a local option law, such as a prosecution for violation of it, the fact of the law being in force being duly proved, it is not necessary for the state to present evidence that each of the necessary preliminary steps was taken, or of their regularity, this being presumed from the proof of the general result." (23 Cyc. 91.)

Thus it would seem that at least some degree of proof was necessary to show that Lincoln county was a local option district. The record fails to disclose that such an election was held.

D. C. McDougall, Attorney General, J. H. Peterson, O. M. Van Duyn, Assistants to the Attorney General, and Frank T. Disney, for Respondent.

"The great purpose of the right to challenge a juror for actual or implied bias is to secure to the defendant and the state a fair and impartial jury, and when it is apparent from the record, as it is in this case, that this end was reached, this court will not reverse the judgment of the trial court." (State v. Gordon, 5 Idaho 299, 48 P. 1061; State v. McClear, 11 Nev. 39; cases under note 1, 12 Cyc. 910; cases under sec. 3084, p. 873, 15 Cent. Dig.)

Under the circumstances, it was proper for the court to instruct that the territory included within Lincoln county on the date alleged in the information was a prohibition district. (Joyce on Intoxicating Liquors, sec. 418.)

STEWART, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

STEWART, C. J.

A complaint was sworn to before the probate judge of Lincoln county by L. M. Zug, charging the appellant with the crime of selling and disposing of intoxicating liquors to one O. E. Blair, within a prohibition district of the state of Idaho, contrary to the provisions of Senate Bill No. 62, Sess. Laws of Idaho, 1909.

Upon this complaint a warrant was issued and appellant was brought before the probate judge, and demanded a trial by jury, on the ground that Lincoln county was not a prohibition district. This was denied by the probate judge and a preliminary examination was held, and the appellant was held to answer to the district court. In the district court the prosecuting attorney filed an information against the defendant, charging him with the crime of selling and disposing of intoxicating liquors to one O. E. Blair, and within a prohibition district of the state of Idaho, contrary to Senate Bill No. 62, Sess. Laws of Idaho, 1909.

When he was arraigned upon the information filed in the district court, and before plea, he filed a motion to set aside the information upon the ground, in substance, that the offense charged in such information was triable, in the first instance, in the probate court, and that the probate court of said county had no authority to hold a preliminary examination therefor, or to hold the defendant for trial to the district court. This motion was overruled and the trial proceeded, and the appellant was convicted and sentenced to imprisonment in the county jail for a term of three months, and to pay a fine of $ 500 and costs of prosecution.

A motion for a new trial was made and overruled. This appeal is from the judgment and from the order overruling the motion for a new trial.

The first question for consideration on this appeal is: Did the trial court err in refusing to quash and set aside the information? In support of this motion the appellant offered in evidence the proceedings before the probate judge, among which was an admission made by the prosecuting attorney to the effect that, on or about March 4, 1910, the day the crime is alleged to have been committed by the appellant, intoxicating liquors were being sold in Lincoln county, state of Idaho, as a beverage, under license granted by the board of county commissioners of said county and state, as provided by sec. 1508 of the Rev. Codes of Idaho, and that saloons were in operation in said county on said day.

The charge made in the information is, that the appellant, on or about the 4th day of March, 1910, "did wilfully and unlawfully, directly and by device and subterfuge, sell, furnish and give away and dispose of intoxicating liquors, namely whisky, to one O. E. Blair, and not upon the prescription of a duly licensed physician, within a prohibition district of the state of Idaho, and contrary to Senate Bill No. 62, Sess. Laws of Idaho of 1909, all of which is contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Idaho."

To support the appellant's motion, therefore, it was necessary for him to show that Lincoln county was not a prohibition district at the time the crime is charged to have been committed, as alleged in the information.

Sec. 7 of the local option statute, Laws of 1909, p. 9, provides that if a majority vote has been obtained in favor of the proposition submitted, it shall thereafter be unlawful for the board of county commissioners of the county to grant any license to sell or dispose of any intoxicating liquors, and sec. 8 of said act provides: "No license issued prior to the passage of this act shall be terminated or in any manner affected by this act, or by any election held hereunder." Sec. 28 of said act defines a prohibition district as follows: "A prohibition district within the meaning of this act is any district or territory in the state of Idaho in which the sale of intoxicating liquors is prohibited by law."

These provisions must all be construed together, and while a county becomes a prohibition district upon an election being held therein for the purpose of voting upon said proposition, and the canvass of the returns and the declaring of the result by the board of county commissioners, yet intoxicating liquors may be sold in said prohibition district, under licenses issued in accordance with law prior to the passage of said local option statute.

The fact that liquor was being sold in said county under licenses was not sufficient to prove that said county was not a prohibition district as provided by said local option statute. It was incumbent upon the appellant, in support of his motion to dismiss, to show that he was not subject to the provisions of the statute regulating the prohibition of sales within a prohibition district, and the fact that others held licenses issued prior to the passage of the local option statute, which permitted them to sell intoxicating liquors as provided in said act, did...