State v. Payne

• Citation: 34 P. 317,6 Wash. 563
• Parties: STATE v. PAYNE.
• Decision Date: 30 June 1893
• Court: Washington Supreme Court

34 P. 317

6 Wash. 563

STATE v. PAYNE.

Supreme Court of Washington

June 30, 1893

Appeal from superior court, Pierce county; F. Campbell, Judge.

E. L Payne, convicted of grand larceny, appeals from order denying a new trial. Reversed.

Andrew J. Hanlon, for appellant.

W. H Snell, Pros. Atty., and Chas. Bedford, for the State.

ANDERS J.

The appellant and one Arquet were tried, convicted, and sentenced to the penitentiary for a period of seven years upon an information charging them with the crime of grand larceny. The case has heretofore been before this court on motion to dismiss for failure to file a transcript within the prescribed time, and the respondent now moves the court to strike from the transcript the bills of exception, on the grounds that they were signed after the time provided by statute, and after the court had lost jurisdiction to sign and settle the same; that the same were signed without notice to respondent as to the time and place, and without any time being set by the court; and that there are in the record what purports to be bills of exceptions and statement of facts and the latter revokes and supersedes the former. It appears from the record that a notice containing a statement of the time at which the attorneys for the appellant would apply to the judge to settle and sign the bills of exceptions, which were annexed to the notice, was served on the prosecuting attorney within the time prescribed by section 393 of the Code of Procedure. The prosecuting attorney filed objections, and suggested certain amendments to the same, and they were not settled or signed at the time designated. Before taking any action in the matter, it seems that the judge had occasion to absent himself from the state for some time, but he subsequently settled and signed the bills of exception, embodying therein the amendments proposed by the prosecuting attorney. No new notice of the time of settlement is shown, and no order fixing a time when the bills of exceptions would be signed appears. It does not appear that the appellant refused or neglected to do anything required of him by law, and the question is, shall he now be deprived of the right to have his case reviewed upon its merits in this court simply because the attorney for the state is not shown by the record to have had notice of the final action of the court in the premises? Under the circumstances, we think he should not. It is not claimed or suggested that the bills of exception are not in accordance with the facts, and, having been brought to the attention of the court in proper time, we see no reason why they should not be considered. No statement of facts such as is provided for by statute was filed or settled, but all of the matters for consideration on this appeal are brought up in the form of bills of exception certified by the trial judge. The motion must be denied.

Before the commencement of the trial the defendant interposed a challenge to the panel of 24 jurors, on the grounds that the names were not drawn from the jury list certified by the county commissioners by the persons designated by law to draw the same, and that the list as drawn was not property certified. Although the challenge was not in writing, sworn to, and proved, as required by section 1300 of the Code of Procedure, it was nevertheless entertained and considered by the court. The particular objection to the panel was that the deputy sheriff, instead of the sheriff assisted the county clerk and auditor in drawing the jury. The statute provides (Code Proc.§ 59) that "the clerk of the superior court, or his deputy, and the sheriff and county auditor, shall place ballots prepared from such list in a box, and having thoroughly mixed them, the clerk, or his deputy, being blindfolded, shall draw the requisite number to serve as such petit jurors." And section 61 further provides that "if from any cause the sheriff or auditor, or both, shall not attend and assist the clerk in drawing jurors, as in this chapter provided, the clerk may call to his assistance such other county officer or officers as he may choose, and they shall proceed as is prescribed for the auditor and sheriff." It will be observed that these two sections provide that the deputy clerk may act in the place of the clerk, but there is no provision authorizing the deputy sheriff to act instead of the sheriff, and the clear implication of the language used is that the sheriff must assist in the drawing in person, if at all, and not by deputy. If it had been the intention of the legislature that the deputy sheriff, like the deputy clerk, might act instead of his principal, it seems that they would have said so, and would not have said that if the sheriff shall not attend then the clerk may call to his assistance such other county officer as he may choose. But it is claimed by the respondent that, inasmuch as it is provided in section 80 of the Code of Procedure that the deputy sheriff has all the power of the sheriff, and may perform any of the duties prescribed by law to be performed by the sheriff, the deputy sheriff was duly authorized to assist the clerk and auditor in drawing the jury, although not mentioned in the sections of the statute pertaining to the selection of juries above quoted. We apprehend, however, that the duties and powers of deputy sheriffs mentioned in section 80 are such only as are usually incident to the office of sheriff, and are to be performed by him in his official capacity as sheriff, and do not include the execution of duties which are unofficial in character, and which may by law be performed as well by any other county officer who may be properly requested to perform them. The sheriff is designated by the legislature to perform or assist in performing the important duty of drawing the names of those who shall act as jurors, not because he is sheriff, but because he is deemed a proper person to execute a trust which must be confided to some one to perform. It needs no argument to prove the proposition that every person who has a cause to be tried in court has a right to have it submitted to a legal jury,-that is, a jury selected by the persons designated by law. The statutes we are considering were passed long after section 80 became a law, and we cannot escape the conviction that, if the legislature had intended that a sheriff's deputy might be delegated by the sheriff himself to perform this particular duty, they would not have made it the duty of the clerk to select some other county officer in the absence of the sheriff. Such trusts as are conferred upon the sheriff and auditor in this matter are, in our opinion, personal to themselves if accepted, and cannot be delegated by them to others. State v. Newhouse, 29 La. Ann. 824. Mere irregularities in the drawing of the jury are not grounds of challenge under our statute, but we do not deem a drawing by persons not authorized by law to be an irregularity merely, but a departure from the provisions of the law itself. Brazier v. State, 44 Ala. 387. We think, under the provisions of our jury statutes, and conceding for the purposes of this case that the defendant's challenge to the panel was properly presented, that it should have been sustained. The challenge and motion to set aside the special venire of 14 names was properly disallowed, as it is not shown that the venire was not issued for a sufficient reason.

The challenge on the ground that the sheriff or officer who summoned the jurors by virtue of the special venire did not make a return of his doings thereon until after the commencement of the trial was properly overruled. It was not a sufficient reason for quashing the venire, and the court did right in causing the proper return to be made. Proff. Jury, § 136. The certificate of the officers who assisted in drawing the jury, to the list returned, is open to objection. It should have stated how the drawing was actually done, and not simply that it was conducted fairly, and as provided by law.

Upon the trial the defendant himself testified in his own behalf and upon cross-examination he was asked the question, "Were you ever confined in the county jail?" And also the further question, "Were you ever convicted of a crime before?" To each of these questions the defendant answered, "No." Afterwards the prosecution introduced the sheriff of the county, whom the court permitted to testify, over the objection of the defendant, that the latter had been in the county jail under a conviction of petit larceny before a justice of the peace. He was also permitted to read to the jury the jail record, and an order of commitment issued by the justice of the peace. This was clearly error on the part of the court. When the witness was asked the question, "Were you ever confined in the county jail?," and answered, "No," the state was concluded by the answer, and could not contradict the witness. The matter inquired of was collateral and irrelevant to the issue before the jury, and was therefore irrebuttable. Freirich v. Territory, 2 Wash. St. 358, 26 P. 976; People v. McKeller, 53 Cal. 65; People v. Bell, Id. 119; Coble v. State, 31 Ohio St. 100; Whart. Crim. Ev. (9th Ed.) § 484. If it was competent to show that the appellant had been previously convicted of a crime, neither the jail record containing the names, description, and term of sentence, etc., of persons confined therein,...