State v. Ju Nun
| Citation | 53 Or. 1,97 P. 96 |
| Parties | STATE v. JU NUN. |
| Decision Date | 25 August 1908 |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Judge.
Ju Nun was convicted of manslaughter, and he appeals. Affirmed.
Pursuant to the provisions of the act of February 17, 1899 (Laws 1899 p. 99), the district attorney of the Fourth judicial district filed an information in the circuit court of Multnomah county charging the defendant with the crime of murder, without a preliminary examination and without any complaint having been filed against him. Upon the filing of the information, a bench warrant was issued by order of the court, and the defendant restrained of his liberty. He moved to set aside the warrant of arrest and information on the ground that the procedure adopted was violative of article 7, § 18, Const. Or., and section 1 of the fourteenth amendment of the Constitution of the United States. This motion was overruled and defendant entered a plea of not guilty. In due time the cause came on for trial before a jury, whereupon he objected to each juror as his name was drawn from the jury box, on the ground that the law under which the jury was drawn was unconstitutional. These objections were overruled, and during the trial the state offered, and there was admitted over defendant's objection, an alleged dying statement of the deceased. The trial resulted in a verdict of manslaughter and defendant was sentenced to the penitentiary, from which judgment he appeals.
Ralph E. Moody, for appellant.
A.M. Crawford, Atty. Gen., for the State.
BEAN C.J. (after stating the facts as above).
The questions raised by the motion to set aside the warrant of arrest and to quash the information were all discussed and decided adversely to defendant's position in State v. Guglielmo, 46 Or. 250, 79 P. 577, 80 P. 103, 69 L.R.A. 466; State v. Tucker, 36 Or. 291, 61 P. 894, 51 L.R.A. 246. The county court of each county is required to make up annually a jury list (B. & C. Comp. § 970 et seq.), from which the jurors for the circuit court shall be drawn by the county clerk with the assistance of the sheriff or justice of the peace. Except in districts composed of no more than one county and having more than one judge of the circuit court, the assistance of the sheriff or justice of the peace shall be dispensed with, and the drawing shall take place in open court in the presence of one or more of the judges and under his or their directions. B. & C. Comp. § 978. Multnomah county is the only county in the state constituting a judicial district and having more than one judge, and the contention for the defendant is that the law providing for the drawing of jurors in open court applies to that county alone, and is therefore a special or local law "regulating the practice in courts of justice" and for "summoning and impaneling jurors," and void under section 23, art. 4, Const., which inhibits the Legislature from passing special or local laws in certain enumerated cases, including those above stated.
The constitutionality of the act is sought to be raised by an objection made on the trial of to the individual jurors as their names were drawn from the jury box; and we do not think it can be so raised. The objection is in effect a challenge to the panel and not to the poll, and such challenge has been abolished by statute. B. & C. Comp. § 117; State v. Fitzhugh, 2 Or. 227; State v. Dale, 8 Or. 229; State v. Savage, 36 Or. 191, 60 P. 610, 61 P. 1128. At common law challenges to jurors were of two kinds--to the array or panel, and to the poll. A challenge to the array was grounded upon objections, which, if well taken, vitiated the whole panel or venire, and required its discharge.
A challenge to the poll was an objection to a particular juror. As the entire office of summoning the panel of jurors was at common law committed to the sheriff or other summoning officer, a right of challenge to the array on the ground of partiality or other disqualification of the officer was of the greatest importance to litigants; but in this country the statutes generally provide that the selection shall be made by some designated officer or officers from a previously prepared list. A right to challenge the array is, therefore, of less importance than at common law, and consequently it has been absolutely abolished in some states ( Baker v. State, 23 Miss. 243), and in others the statutes have prescribed the grounds upon which it can be made, and in such cases the challenge can be made only upon the grounds enumerated ( State v. Bates, 25 Utah, 1, 69 P. 70; People v. Schmidt, 168 N.Y. 568, 61 N.E. 907; People v. Jackson, 111 N.Y. 362, 19 N.E. 54; People v. Welch, 49 Cal. 174; People v. Wallace, 101 Cal. 281, 35 P. 862). Our statute not only abolishes the right to challenge the array or panel, but defines a challenge as "an objection to an individual juror," and prescribes the grounds upon which it may be made. It is either peremptory or for cause. B. & C. Comp. § 119. A peremptory challenge is an objection for which no reason need be given. Id. § 118. A challenge for cause is either that the juror is disqualified from serving in any action--that is, has been convicted of a felony, does not possess the qualifications prescribed by law for a juror, or is of unsound mind, etc.--or that he is disqualified from serving in the particular action on trial on account of implied or actual bias. Id. §§ 119-123, inclusive. These are the only challenges to a juror allowed under our procedure. It may be that, if persons were called or summoned as jurors wholly without color of law, an objection on that ground would be available to a litigant, for in such a case the persons so called or summoned would not...
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