State v. Lundgren

• Decision Date: 26 December 1913
• Citation: 124 Minn. 162,144 N.W. 752
• Parties: STATE v. LUNDGREN.
• Court: Minnesota Supreme Court

124 Minn. 162

144 N.W. 752

STATE

v.LUNDGREN.

Supreme Court of Minnesota.

Dec. 26, 1913.

Appeal from District Court, Clay County; C. A. Nye, Judge.

Severin Lundgren was convicted of selling liquor to a minor, and appeals. Affirmed.J. M. Witherow and N. I. Johnson, both of Moorhead, and Chas. S. Marden, of Barnesville, for appellant.

Lyndon A. Smith, Atty. Gen., and C. G. Dosland, Co. Atty., of Moorhead, for the State.

HALLAM, J.

Defendant was convicted of the crime of selling liquor to a minor. He raises three questions:

First. He contends he did not have a fair trial, on the ground that the court discharged part of the regular panel of jurors, that the court issued a special venire directed to the coroner, instead of to the sheriff, and that the coroner summoned jurors who were prejudiced against him, and not from the county at large, but from one particular locality.

Second. He contends that it is no offense for any person to sell liquor to a minor unless he has been notified not to do so.

Third. He contends that he could be convicted only upon proof of sales made, authorized, or approved by him. The sale upon which defendant's conviction is based was made by his bartender, without defendant's knowledge or authority and contrary to his instructions.

[1] 1. At the May, 1913, term of the district court of Clay county a large number of indictments were returned against liquor dealers of Moorhead, charging them with unlawful sale of liquor to minors. The term commenced the first Monday in May. On May 29th, after one liquor case had been tried and a jury drawn in a second, the court stated: ‘It appears here from the character of the litigation, especially criminal cases that are being tried, and that will be tried hereafter in this term, that already a large number of the jurors serving at this time are more or less acquainted necessarily with the facts connected with the cases, * * * and that it will be more difficult as each case is called to secure, out of this panel which is now serving, men who are qualified to act, because of their knowledge of the cases that are being tried, and it appears clearly that men who are serving on the regular panel in this way necessarily gathered a good deal of information, can't help to as to the evidence in these cases as they come up, and therefore it is ordered that all jurors not serving on the present case [State v. Toole] will be discharged from further attendance at this term. * * * There will be a special venire as soon as conveniently can be.’ Thereupon the county attorney filed an affidavit of prejudice against the sheriff, under G. S. 1913, § 993, and a special venire issued to the coroner, and that officer summoned 20 jurors. The jurors sitting in the Toole Case, being 8 of the regular panel and 4 summoned under a previous special venire, continued to serve until defendant's case was called, and some of them were called to the jury box upon his trial. Defendant, when his case was called, challenged the panel of petit jurors. The challenge was denied by the state, and was found not true by the court.

Defendant urges that the course pursued by the court was error, and that he was not accorded a fair trial. We cannot so hold. It is true there is no express statutory authority for the dismissal of either the whole or part of the regular panel. But we are of the opinion that this was in the sound discretion of the court. Barney v. State, 49 Neb. 515, 68 N. W. 636;Fanton v. State, 50 Neb. 351, 69 N. W. 953,36 L. R. A. 158;Simmons v. Cunningham, 4 Idaho, 426, 39 Pac. 1109. See State v. Strait, 94 Minn. 384, 102 N. W. 913;State v. Peterson, 61 Minn. 73, 63 N. W. 171,28 L. R. A. 324. The powers of a trial court during the progress of a term of court cannot be too much circumscribed. Rules of practice and procedure must have some elasticity. The administration of the law is a practical matter, and much must be left to the wisdom and judgment of the presiding judge. No one can doubt that under certain circumstances the discharge of a whole jury panel and the summoning of a new one may be in the interest of a proper administration of justice. We are not prepared to say that this was not such a case.

This action of the court caused a deficiency of jurors. In case of a deficiency of jurors from any cause, the court is authorized by statute to supply the deficiency by ordering a special venire to issue to the sheriff, or, in the event of his disqualification, to the coroner, commanding him to summon a specified number of jurors ‘from the county at large.’ G. S. 1913, §§ 166, 993. The court proceeded to supply the deficiency of jurors in the manner prescribed by statute.

Complaint is made that the coroner did not select these jurors ‘from the county at large.’ The jurors summoned were from 7 towns, cities, and villages out of a total of 36 in the county. Eight of the 20 were selected from the village of Hawley, and 2 others within a mile thereof. We should have been better satisfied had the coroner made his selection over a wider area, yet we cannot say that this was ground for challenge to the panel. We are of the opinion that no bad faith or fraud or oppression was established. It is not always practicable to select a special panel from every corner of the county, and this is not required. State v. Arthur, 39 Iowa, 631. Those selected were for the most part from localities remote from Moorhead, the seat of this litigation, and might be expected to be more free from local prejudice than jurors summoned from nearer points. After all, the important consideration is the selection of men who are in fact fair-minded jurors. We find no just basis for the charge that the jurors selected by the coroner were not, as a class, fair jurors. The court tried out all these questions as questions of fact on the challenge to the panel. Gen. Stats. 1913, § 9227. The challenge was ‘found not true,’ and we must hold that the record sustains this finding.

[4] It is claimed that individual jurors summoned were prejudiced. If this be true, it is no ground for a challenge to the panel. This objection must be reached by challenge of individual jurors for bias. Challenge to the panel ‘can be founded only on a material departure from the forms prescribed by law in respect to the drawing and return of the jury.’ Gen. Stats. 1913, § 9225.

Complaint is made that the court retained part of the original panel in service. Those retained were at the time serving upon a case. We cannot regard this as error.

[2] 2. The second contention is that, under the statutes of this state in force when this offense was committed, the sale of liquor to a minor was not unlawful unless notice forbidding it had previously been given to the person making the sale. The statute reads as follows: ‘It shall be unlawful for any person, except a licensed pharmacist * * * to sell * * * any spirituous, vinous, malt or fermented liquors * * * to any minor person, or to any pupil or student of any school or other educational institution in this state, or to any intoxicated person, or to any person of Indian blood, or to any habitual drunkard, or to any public prostitute, or to a spendthrift or an improvident person, within one year after written notice by any peace officer, parent, guardian, master, employer, relative, or by any person annoyed or injured by the intoxication of such spendthrift or improvident person, forbidding the sale of...