State v. Landry
| Decision Date | 04 December 1903 |
| Citation | 74 P. 418,29 Mont. 218 |
| Parties | STATE v. LANDRY. |
| Court | Montana Supreme Court |
Appeal from District Court, Powell County; Welling Napton, Judge.
Felix Landry was convicted of grand larceny, and from an order granting a new trial the state appeals. Affirmed.
Jas Donovan, Atty. Gen., for the State.
C. B Nolan, for respondent.
The defendant was convicted by a jury of the crime of grand larceny, and was sentenced to a term of one year at hard labor in the state prison. The larceny charged was that of a certain mare, the property of one Smelzer. A motion for a new trial was made upon three grounds: (1) That the jury received evidence out of court other than that resulting from a view of the premises and from a view of the mares which they inspected; (2) that the court misdirected the jury in matters of law, and erred in the decision of questions of law occurring at and during the course of the trial; and (3) that the verdict was contrary to the law and the evidence. After consideration the court made an order sustaining the motion. The state has appealed.
1. Contention is made by the Attorney General that the notice of intention was not sufficient to give the court jurisdiction to grant the order, for the reason that it did not state whether the motion would be based upon affidavits or a bill of exceptions. The procedure to be observed upon motions for new trial in criminal cases is prescribed by sections 2190, 2194, of the Penal Code. Section 2194 directs what the contents of the notice shall be. It "must designate the grounds upon which the motion will be made," but there is no requirement that it shall state anything further. The first part of the section declares that, if the motion is made upon any of the grounds mentioned in subdivisions 2, 3 4, and 7 of section 2192, it must be based upon affidavits, otherwise it must be based upon a bill of exceptions. Therefore the grounds stated in the notice are of themselves notice of what will be the basis of the motion. The Attorney General cites in support of his contention Rutherford v. Talent, 6 Mont. 112, 9 P. 886, and Arnold v. Sinclair, 12 Mont. 248, 29 P. 1124. These cases are not in point. They are both civil cases, and, so far as they discuss the contents of the notice, they refer to requirements of former provisions of our Code of Civil Procedure which are obsolete. The former refers to the Revised Statutes of 1877, and the latter to the Compiled Statutes of 1887. There is no such requirement in the present Code of Civil Procedure (section 1173). Even if there were, it would furnish no guide in criminal cases, in the absence of some other special provision on the subject, which we do not find.
2. The judgment was pronounced and entered on April 19, 1902. On that day the judge settled a bill embodying exceptions to an order of the court overruling a challenge to the panel of jurors from which the trial jurors were drawn. On April 26th, after the notice of intention was served, the judge made an order extending the time for 30 days from the date of the judgment for the preparation of a bill embodying other matters. On May 16th this time was again extended until May 26th. The bill was presented, upon due notice, to the county attorney, and settled on May 24th--35 days after the entry of judgment. The order of extension in neither case was made by consent of the county attorney. No objection is urged to the action of the court on the bill dated April 19th. But the contention is made that the judge was without power to settle the bill dated May 24th for the reason that the extension of time for 35 days was without the consent of the county attorney. Therefore it is said that the motion, so far as it was based upon the bill settled May 24th, should have been denied. Section 2171 of the Penal Code provides that: "When a party desires to have the exceptions taken at the trial settled in a bill of exceptions, the draft of the bill must be prepared by him and presented, upon notice of at least two days to the county attorney, to the judge for settlement within ten days after judgment has been rendered against him, unless further time is granted by the judge, or by a justice of the Supreme Court," etc. The power of the judge or a justice of this court to extend the time for the preparation of bills of exception in criminal cases is not made by this section to depend upon the consent of the county attorney; nor it there any other provision applicable. Section 1897 of the Code of Civil Procedure applies in terms only to extension of the time within which an act is to be done under the provisions of that Code. The bill was therefore presented and settled in time, and was properly used as a basis for the motion.
The order granting the motion does not specify the particular ground upon which the motion was granted. If, therefore, there is merit in any one of the errors assigned, the action of the court must be sustained. State v. Schnepel, 23 Mont. 524, 59 P. 927.
3. At the commencement of the trial counsel for defendant interposed a challenge to the panel of jurors on the ground that the names of the persons constituting the panel had not been drawn in the manner required by the statute. Under the statutes (sections 243, 263, 265, Code Civ. Proc.) it is the duty of the clerk of the district court to keep three jury boxes, designated as boxes Nos. 1, 2, and 3. In box No. 1 the clerk is required to deposit and keep the ballots containing the names on the jury list prepared by the jury commissioners for the current year. Code Civ. Proc. §§ 240-244. This list comprises the names of the regular jurors. Id. § 245. In box No. 2 the clerk must deposit from time to time and keep the ballots containing the names of all persons who have served during the year. Section 263. Box No. 3 is to contain the names, upon duplicate ballots, of all competent jurors residing in the city or town where the court sits. Section 265. Sections 260 to 264 direct when and how the drawing shall be conducted. When the order is made by the court directing a panel to be drawn and fixing the required number (section 260), the clerk proceeds in the presence of the court to draw from box No. 1 (section 261). The persons whose names are drawn are then summoned by the sheriff. Id. § 280. If there are not sufficient names in box No. 1 to make up the required list, the drawing must be continued from box No. 2. Resort can be had to box No. 3 only under the circumstances indicated in section 281. Upon the trial of the challenge it appeared that, after the calendar had been called to fix the dates for the trial of causes, the court directed the clerk to draw a panel from box No. 3, the reason assigned being that there were only two criminal cases for trial at that term. Thereupon this was done, and the persons whose names were so drawn constituted the panel for the term, and the trial jury was drawn from it. It is alleged that this action of the court was erroneous, and prejudicial to the defendant. This contention must be sustained. A party to an action, if he is entitled as a matter of right to a trial by jury, is also entitled, at the commencement of the trial, to a panel drawn in substantial conformity with the requirements of the statute. This rule has been recognized by this court since the early case of Dupont v. McAdow, 6 Mont. 226, 9 P. 925. When that case was tried, the statute required the panel to consist of 24 qualified jurors, and that when this panel become exhausted, but not before, the court might direct the sheriff to summon from the body of the county--and not from bystanders--a panel consisting of qualified persons to furnish the list out of which to complete the jury. The panel at the commencement of the trial consisted of 23 persons only. The challenge of the defendant being overruled, and the jury not having been completed, a special venire was issued. The territorial court held this to be prejudicial error, and directed a new trial. Again, in State ex rel. Root v. McHatton, 10 Mont. 370, 25 P. 1046, this court held that a jury panel not drawn in substantial conformity with the statute then in force (Sess. Laws, 1889, p. 166) was not a lawful panel, and by mandamus directed the district judge of Silver Bow county to proceed in conformity with the statute. Section 2000 of the Penal Code provides: "Trial juries for criminal actions are formed in the same manner as trial juries in civil actions." The provisions of the sections of the Code of Civil Procedure above cited therefore apply to criminal cases, and, applying the rule laid down in the cases cited, it was error to draw the jury from box No. 3 until the emergency contemplated by section 281 had arisen. The clear import of this provision is that box No. 3 may not be resorted to at all until it has been ascertained that there is not a sufficient number of trial jurors present out of the number properly drawn from box No. 1, and that the deficiency cannot be supplied without great delay or expense, for the express statement is: "If a sufficient number of trial jurors, duly drawn and notified, do not attend or cannot be obtained in the opinion of the...
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