State v. King

• Decision Date: 02 May 1890
• Citation: 24 P. 265,9 Mont. 445
• Parties: STATE v. KING.
• Court: Montana Supreme Court

24 P. 265

9 Mont. 445

STATE v. KING.

Supreme Court of Montana

May 2, 1890

Appeal from district court, Jefferson county; THOMAS J. GALBRAITH Judge.

George D. Greene and W. L. Hay, for appellant.

M. H Parker, Co. Atty., and Henri J. Haskell, Atty. Gen., for the State.

BLAKE C.J.

The defendant was found was found guilty of the crime of murder in the first degree, and this appeal has been taken from the order of the court below in overruling the motion for a new trial. The appellant and George Peters were indicted January 14, 1890, by a grand jury consisting of seven persons, and separate trials were demanded and allowed. The alleged offense was committed November 29, 1889, in the county of Jefferson. The first error that is assigned appears in different motions, and relates to the organization of the grand jury that returned the indictment. The following order was made at chambers, November 25, 1889, by the judge of the judicial district: "Ordered that out of the twenty persons whose names are contained in the proper envelope labeled as follows, to-wit, 'Grand jurors for the next regular term of the district court of Jefferson county,' the names of nine of said persons be drawn by the clerk of said court, or his proper deputy, and of the judge of said court, if he be there present, in the presence of the sheriff, or his proper deputy, to be summoned as grand jurors, to serve at the next regular term of said court which commences on the first Monday in January, A. D. 1890, and that a proper venire do issue for said persons returnable on the first day of said term, at ten o'clock A. M. See Laws Mont. 16th Sess. pp. 166, 167, and especially sections 4 and 7; and in so far as possible conform with the provisions thereof in re." This order was complied with, and the venire, containing the names of the above-described nine persons, was issued to the sheriff, November 30, 1889. The judge of the district court instructed the clerk by a letter which was received December 15, 1889, to "advise" the officer that he had "concluded to dispense with the use of a grand jury at the January prox. term," and to return this venire; and also to notify the persons who had been summoned that their services would not be wanted. The clerk acted accordingly. The sheriff made his return on the venire, January 1, 1890, showing that all of these persons had been personally served to appear, and act as grand jurors. The following order was made by the court, January 7, 1890: "It appearing that no grand jurors have been summoned, and that a grand jury is wanted, ordered that the judge and clerk of this court do forthwith prepare a list of twenty persons, competent to serve as grand jurors, who shall be summoned by the sheriff to be and appear before said court on the 9th day of January, 1890, at ten o'clock A. M." In conformity therewith, these persons were selected to serve as grand jurors, and, in open court, the defendant was notified of his rights of challenge before they were sworn. A challenge was then interposed to the panel, "for the reason that the same was not drawn in a accordance with the essential provisions of the Laws of Montana." The particulars will be commented on hereafter. This challenge was overruled, and thereupon the clerk, by order of the court, selected by lot, from this list of twenty, a grand jury composed of seven persons, who were duly sworn and charged. The foregoing indictment was presented January 14, 1890.

The challenge to the panel is based upon the provisions of Crim Prac. Act, (Comp. St. div. 3, § 119.) The appellant contends that the persons who were summoned to serve as grand jurors under the order made November 25, 1889, were discharged without lawful authority, and that the proceedings by virtue of the order made January 7, 1890, were void. The act relating to juries, approved March 14, 1889, should be faithfully executed, so that the names of the persons who may become grand or trial jurors shall be always selected by the commissioners who are designated. But circumstances may arise which will render its requirements nugatory, and the transcript shows that this event occurred. The statute, however, provides directly for the contingency in these terms: "When, from any cause, on the meeting of, or during the term of, a court, a grand jury is wanted, or there is not a sufficient number of grand jurors present or those summoned have been excused or...