State v. Peterson

• Decision Date: 06 May 1895
• Citation: 61 Minn. 73,63 N.W. 171
• Parties: STATE v. PETERSON ET AL.
• Court: Minnesota Supreme Court

61 Minn. 73

63 N.W. 171

STATE

v.PETERSON ET AL.

Supreme Court of Minnesota.

May 6, 1895.

(Syllabus by the Court.)

1. The district court has the power, under the statute, to discharge the grand jury impaneled at a regular general term of the district court, adjourn the term to a future day, and order a new venire of grand jurors to be drawn and summoned for such adjourned term.

2. Such new venire may be drawn from the regular jury list selected by the county commissioners and certified and filed with the clerk of the court.

3. The statute requires such commissioners to make out separate lists of grand and petit jurors. Held, two separate lists following one heading, and certified to by only one certificate, comply with the statute. Held, the certificate in this case is sufficient.

4. The number of names on the grand jury list was reduced to 49 by the drawing of the grand jury for the regular term. The county commissioners did not meet after such drawing and before the drawing of the grand jurors for the adjourned term. Held, a grand jury for such adjourned term might legally be drawn from said 49 names.

5. The dismissal of an indictment on the motion of the county attorney after the same has been attacked by demurrer is not equivalent to a decision of the court sustaining the demurrer, so as to prevent the case from being resubmitted to the same or another grand jury, without the order of the court.

6. On the dismissal of an indictment on the motion of the county attorney, a second indictment may be found by the same grand jury for the same offense, on the evidence already received, on which the former indictment was found, and it is not necessary that any new or additional evidence be received. Held, the motion to set aside the second indictment was correctly denied.

Case certified from district court, Polk county; Frank Ives, Judge.

Gustave Peterson and John J. Ostby were indicted for selling intoxicating liquors to a minor. A motion to set aside the indictment was denied, and the case was certified to the supreme court. Affirmed.

H. W. Childs, Atty. Gen., Geo. B. Edgerton, Asst. Atty. Gen., and L. E. Gossman, Co. Atty., for the State.

H. Steenerson, for defendants.

CANTY, J.

The defendants were indicted at an adjourned term of the district court for the crime of selling on January 14, 1895, intoxicating liquor to a minor. They moved to set aside the indictment on the grounds hereinafter stated, the motion was denied by the court, and the judge thereof certifies to this court the question whether it was error to deny said motion. The regular general term of the district court of Polk county commenced on the 3d of December, 1894. On December 10th the grand jury appeared before the court and reported that they had finished their business. Thereupon the judge stated to them that they had failed to do their duty; “that he knew there was sufficient evidence before them to find indictments in cases where they had failed to do so”; and that he felt it his duty to order a special venire for 23 grand jurors to issue immediately; and therefore discharged them. The court then ordered a special venire for 23 grand jurors, returnable December 17th, to issue, but later in the day modified the order so as to make the venire returnable January 15, 1895. The venire was issued and placed in the hands of the sheriff, but was afterwards recalled and the order revoked. On December 22, 1894, the following order was made: “State of Minnesota, Polk County-District Court. It appearing to me that there is a necessity for an adjourned term of this court to be held at as early a day in January, 1895, as practicable, for the trial of civil and criminal cases; and it further appearing that a grand jury is necessary at said adjourned term to inquire into the crimes, if any, committed in said county,-therefore it is ordered that the December, 1894, term of this court be, and the same is, adjourned to, and will be held at, the courthouse in the city of Crookston, in the said county, on Tuesday, the 15th day of January, 1895, at ten o'clock a. m. of that day, at which time the petit jury, and each and every member thereof, unless duly excused, will appear and be in attendance on said term. And it is further ordered that Nils Nuus, clerk of this court, be and hereby is instructed forthwith to draw a grand jury for said adjourned term in the manner prescribed by law for drawing jurors, and on or before the first day of January, 1895, to issue his venire to the sheriff of said county, directing and commanding him to duly summon such jury to be and appear before this court, as grand jurors at such adjourned term, at the time and place before named. Dated this 22nd day of December, 1894. By the Court. Frank Ives, Judge.” Pursuant to this order, on the same day, the clerk, in the presence of the sheriff and a justice of the peace, drew from the jury box the names of 23 grand jurors, in the manner prescribed by section 6, c. 107, Gen. St. 1878 (section 7175, Gen. St. 1894), and on the same day the clerk issued to the sheriff a venire commanding him to summon the persons so drawn to appear before the court at said adjourned term. Said jurors were summoned and appeared at said adjourned term, were sworn and charged as a grand jury, and returned the indictment here in question.

1. It is urged by defendants that the court had no power to order this grand jury for this adjourned term. We are of the opinion that the court had such power. Section 15, c. 64, Gen. St. 1878 (section 4850, Gen. St. 1894),...