State v. McHenry

• Decision Date: 12 February 1929
• Docket Number: 38664
• Citation: 223 N.W. 535,207 Iowa 760
• Parties: STATE OF IOWA, Appellee, v. ELSIE MCHENRY, Appellant
• Court: Iowa Supreme Court

223 N.W. 535

207 Iowa 760

STATE OF IOWA, Appellee, v. ELSIE MCHENRY, Appellant

No. 38664

Supreme Court of Iowa, Des Moines

February 12, 1929

Appeal from Polk District Court.--W. G. BONNER, Judge.

Defendant was indicted for having in her possession certain burglar tools, with intent of committing the crime of burglary. On trial to a jury, she was convicted, and from judgment entered in pursuance of such verdict, she appeals.

Reversed.

C. C Putnam and Walter F. Maley, for appellant.

John Fletcher, Attorney-general, Carl Missildine, County Attorney and Mason Ladd, Assistant County Attorney, for appellee.

ALBERT C. J. STEVENS, DE GRAFF, MORLING, and WAGNER, JJ., concur.

OPINION

ALBERT, C. J.

I.

On the 20th day of January, 1927, the sheriff of Polk County, with his assistants, and by virtue of a search warrant, made search of the property in the city of Des Moines known as 815 Twenty-ninth Street. This property was then occupied by the defendant, Gale Johnson, and Frank Petrelli, alias Frank Patterson, alias Tony, the Wop. As a result of such search, numerous articles of various kinds and descriptions were found, and on January 28, 1927, an indictment was returned by the Polk County grand jury, accusing Gale Johnson, Elsie McHenry, alias Mrs. A. J. Parrish, and Frank Petrelli, alias Tony, the Wop, of "unlawfully and feloniously then and there be found having in their possession certain burglar tools and implements" (numerous articles are described in the indictment), with unlawful and felonious intent on the part of the said named parties to commit the crime of burglary. Defendant demanded and was granted a separate trial.

Defendant's counsel was advised that the case would come on for trial at 9 o'clock, Wednesday morning, May 18, 1927, and at that hour, defendant's counsel asked and demanded that the entire panel of jurors be called for this particular case, which was refused. Except for the disposition of preliminary matters which are not shown in the record, nothing was done in the case until 2:45 P. M. of the same day, at which time, and before the drawing of the jury had commenced, defendant's counsel demanded the names of all jurors in the panel to be called, and "that this case be continued until such time that the entire panel would be available in this court," from which to select a jury for the trial of this case. This request of the defendant's was overruled. The remainder of that session and a part of the morning session, until 10:20 A. M., the following day, were taken in selecting a jury in this case, at which latter time a jury was accepted and sworn to try the case. The record is wholly silent as to whether the defendant exercised any one or more or all of her peremptory challenges. She is not claiming that she did not have a fair and impartial jury, but is standing on the technical question of law to which reference will hereinafter be made.

As this court well knows, the district court of Polk County has six divisions or judges. Pursuant to law, there was called for this court a panel of jurors, and after excuses had been received, there were left in said panel 94 jurors. Prior to the time of the afternoon session on May 18, 1927, when arrangements were made to draw this jury, two of the other district judges had selected juries from the above number, which left 70 jurors in the panel from which the jury in this case was to be selected; but the defendant insists that she was entitled to have the full panel of 94 present in court, from which her jury was to be selected. As supporting this contention, she relies on Sections 11477 and 11478, Code of 1927, reading as follows:

"11477. When a cause is called for trial, and before drawing the jury, either party may require the names of all the jurors in the panel to be called, and an attachment to be issued against those who are absent, but the court may, in its discretion, wait or not for the return of the attachment."

"11478. The clerk shall prepare separate ballots containing the names of the persons returned as jurors, which shall be folded, each in the same manner, as nearly as may be, and so that the name thereon shall not be visible, and must deposit them in a box kept for that purpose."

The question is whether or not the defendant was entitled to have the names of the full panel, to wit, 94 jurors, in the box from which her jury was to be drawn. From a practical standpoint, defendant would not be entitled to have her demand complied with, because it would necessitate the calling in of jurors already engaged in the trial of other cases, and would seriously interfere with the workings of these courts, or the continuance of this case until such a time as all of the jurors of the panel would not be otherwise engaged. In the case of Tyler v. State, 207 Ala. 129 (92 So. 478), the Alabama court said:

"We do not think that the trial court had to postpone this case until the twelve jurors engaged in the trial of the other case got through, or in omitting for a good excuse the other juror. It has been heretofore held, when the jury law was stricter, and the construction of the same more technical than at present, that, when some of the veniremen were engaged upon another case, the trial court could proceed without them."

In Connor v. Salt Lake City, 28 Utah 248 (78 P. 479), there, as here, were several judges in the same district. A situation existed very similar to the present, and one of the litigants insisted that he should have a right to have his jury drawn from the full panel. The court there said:

"Nor is the position of the appellant that it was entitled to have the entire panel of jurors available for the selection of the jury in this case sound. If this were imperative as to a general panel in the trial of civil causes, then, as may easily be observed, the court, after submitting one case to a jury, would be unable to proceed with another until a verdict had been returned in the case submitted, although there might be plenty of idle and competent jurors from whom another satisfactory jury could be selected. When the length of time which juries frequently consume in arriving at their verdicts is considered, the great delay in the trial of causes which would thus be occasioned is obvious. We are aware of no law in this state that would warrant such a practice. The parties to every case at law may demand a fair and impartial jury to be selected from the panel of jurors drawn for service in the court where the case is to be tried, but whether such jury be selected from the entire panel or only a portion thereof is immaterial. If the jurors constituting the jury are competent, fair, and impartial, it is all that the law requires and the litigants can demand."

In the case of State v. Quirk, 101 Minn. 334 (112 N.W. 409), the Minnesota court had before it a similar question. In Hennepin County, there were six judges, and as many courts. When a case was called for trial, the names of 18 jurors were drawn from the box and sent to the court room where the case was to be tried. The next jury was drawn from the remainder of the names in the box. The defendant was demanding the right to have all of the names in the box before his jury was drawn. The court said:

"The jury law would seem to require that the names of all the jurors not serving on other cases should be in the box, but such procedure is not always possible in a county such as Hennepin. It would have been well to have complied with defendant's request in a case of this importance, in order to have reduced the possibility of error to a minimum. But the eighteen jurors were, in a general sense, serving on another case, and, as the jury in this case was actually drawn from the box in the way prescribed by statute, the liberal construction which should be given such requirements leads us to the conclusion that no substantial error was committed."

However, from this standpoint it is obvious how impracticable it would be to announce a rule that every litigant in the Polk County court should have the right to demand that the full panel must be present before a jury can be drawn in a case. Again, we had one phase of this question before us in State v. McClain, 191 Iowa 750, 183 N.W. 305, and after reviewing the statute above cited, and State v. Gillick, 7 Iowa 287 (Clarke) , and State v. Edgerton, 100 Iowa 63, 69 N.W. 280, we held that statutes of this kind are directory, and that a substantial compliance with the statutes was all that was required. The purpose of these statutes, as we view them, is to assure a litigant that his jury will be drawn from the regular panel so long as there are enough jurors left in the panel to satisfy the needs. As suggested in one of the above cases, all that the defendant is entitled to is a fair and impartial jury of 12 men. The right of the litigant in matters of this kind is a right of rejection, and not a right of selection. To aid the defendant by way of rejection, he is given the statutory right of peremptory challenge, in addition to the challenges for cause. The preliminary purpose of both of these lines of challenges and the right to strike names is to aid the litigant in rejecting from the jury undesirable jurors. The record does not show that the defendant exercised any of her peremptory challenges herein, but she accepted the jury. Had the record shown that defendant had exercised all of her peremptory challenges, and was yet complaining that there were others on the jury whom she wished to reject, we might have a different question. She must have been satisfied that she had a fair and impartial jury when it was accepted.

II. The evidence in the case shows that, on December 24, 1926 the Alleman Bank in Polk County was robbed, and among the...