State v. Porter

• Decision Date: 12 March 1952
• Docket Number: No. 9059,9059
• Citation: 125 Mont. 503,242 P.2d 984
• Parties: STATE v. PORTER.
• Court: Montana Supreme Court

Page 984

242 P.2d 984

125 Mont. 503

STATE v. PORTER.

No. 9059.

Supreme Court of Montana.

Submitted Oct. 22, 1951.

Decided March 12, 1952.

Ralph J. Anderson, Albert C. Angstman, Helena, for appellant.

Arnold H. Olsen, Atty. Gen., Vera Jean Heckathorn, Asst. Atty., Gen., William H. Coldiron, Asst. Atty. Gen., Michael G. Chilton, County Atty., Helena, for respondent.

METCALF, Justice.

The information charges that between July 25, 1949, and October 28, 1949, the defendant corruptly and unlawfully attempted to influence Matthew Vook, a grand juror, in respect to his decision, judgment or report in certain matters concerning the defendant then pending before, and being investigated by the grand jury, 'by means of oral communications not in the regular course of proceedings of said Grand Jury, by means of threats, intimidation, persuasion and entreaty and by means of promises to pay to said Matthew Vook, as such juror, lawful money of the United States.' The defendant was convicted and from the judgment of conviction brings this appeal.

Other questions concerning the same grand jury have been before this court in State ex rel. Adami v. Lewis and Clark County, Mont., 220 P.2d 1052; State ex rel. Porter v. District Court, Mont., 220 P.2d 1035; and State ex rel. Porter v. First Judicial District, 123 Mont. 447, 215 P.2d 279. In the latter two cases the defendant at bar was the relator.

On May 19, 1950, six days prior to his trial, the defendant challenged the entire trial jury panel under the provisions of Chapter 71, Title 94, R.C.M.1947. The basis for the challenge was that the court had excused and dismissed so many of the trial jurors that the panel consisted of but 23 jurors and that after those jurors who were subject to challenge for cause were excused there would not be a sufficient number of regularly impaneled jurors to try the case and therefore the court would draw additional trial jurors from jury box No. 3 to the detriment of defendant.

At the hearing on the challenge counsel for the defendant, Stanley M. Doyle, testified that on March 29, 1950, a panel of 70 jurors was called for the term. By May 24, 1950, 47 jurors had been excused so that on that date but 23 jurors remained to try the case. (On the day of trial this number had been reduced to 21.) Of the remaining jurors, five were subject to challenge for cause. The witness gave the names of these jurors and recited the facts upon which such a challenge would be based and they appear to be sufficient to sustain such a challenge under R.C.M.1947, §§ 94-7119, 94-7120.

Under the provisions of R.C.M.1947, § 94-7115, the defendant was allowed six peremptory challenges and by section 94-7116 the state a like number. Therefore if the remaining jurors were all satisfactory for cause to the state and defendant, and the defendant exercised his six peremptory challenges the panel would be insufficient even though the state did not take a single peremptory challenge.

In State v. Hay, 120 Mont. 573, 194 P.2d 232, 235, this court reaffirmed the principle laid down by the Montana territorial supreme court that a 'defendant has a right to an impartial jury' selected from the proper place and drawn and summoned according to law. Dupont v. McAdow, 6 Mont. 226, 229, 9 P. 925, 926. Repeatedly this court has required the trial court to substantially comply with the statutes in procuring a jury. Any material deviation or departure is a denial of fundamental constitutional rights. State v. Groom, 49 Mont. 354, 359, 141 P. 858; State v. Tighe, 27 Mont. 327, 71 P. 3.

'The right to a trial by jury is an undisputed right, and in order that this right may be preserved to parties interested, it is a self-evident proposition that the law of their procurement must be observed. This form of trial is by the county, and those serving must be selected from the duly qualified citizens of the county.' Kennon v. Gilmer, 4 Mont. 433, 455, 2 P. 21, 24.

In order to carry out the constitutional guarantee that the accused in a criminal prosecution shall have a right to 'a speedy public trial by an impartial jury of the county' (Const. of Montana, Art. III, § 16), the legislature has provided that the names of all eligible jurors of the county be placed in jury box No. 1. R.C.M.1947, § 93-1404. It is from the names in this jury box that the trial jury is drawn and summoned. R.C.M.1947, § 93-1502.

The statute also provides that the clerk of court must keep a box known as jury box No. 3 in which duplicate ballots containing the names of all persons qualified as trial jurors who reside in the city or town where the trial term is held. R.C.M.1947, § 93-1506.

The trial court may in its discretion direct the clerk to draw additional jurors from jury box No. 3 when a sufficient number of trial jurors to form a jury do not attend or cannot be obtained without great delay or expense. R.C.M.1947, § 93-1510.

The trial judge is allowed considable discretion within the statute. But jurors may only be drawn from jury box No. 3 in case the emergency set out in the statute occurs, i. e., insufficient trial jurors and great delay or expense in procuring additional jurors in the ordinary manner, 'the evident intent and purpose of the Legislature being to guaranty to every person a trial by a jury called by lot from the whole body of qualified jurors in the county.' State v. Landry, 29 Mont. 218, 224, 74 P. 418, 420. Thus after part of the trial jury is impaneled it would cause undue delay to require the sheriff to find and serve jurors in the outlying reaches of the county and cause extraordinary expense in that the members of the jury would be idle while the additional jurors were being obtained. But section 93-1510 does not authorize the court to resort to jury box No. 3 merely because serving prospective jurors residing at a distance from the county seat or paying mileage fees to such jurors will incur additional expense.

As was pointed out in Lee v. Hayden, 63 Mont. 589, 595, 208 P. 596, 597, the court's discretion is a reasonable one and must be exercised in a reasonable manner to carry out the purpose and intent of the Constitution and the statutes, 'which it is assumed will not be abused, as, for example, by drawing in the first instance a very small and insufficient panel from box No. 1, and then under the emergency which the court itself has created, drawing the major portion of the panel from box No. 3.'

In the instant case the panel was not ample for all ordinary purposes; its inadequacy was called to the attention of the court six days before the case was to be tried. There is nothing in the record to show any sudden emergency justifying denial of defendant's motion to obtain additional jurors from jury box No. 1. This defendant was of the belief that a 'Main Street' jury would be antagonistic to him and he made a timely request to have the venire augmented by additional jurors drawn from the entire county. This was his right under the Constitution and under the statutes. Kennon v. Gilmer, 4 Mont. 433, 2 P. 21. Failure to provide an adequate panel was an abuse of discretion and amounted to the systematic and calculated exclusion of persons residing throughout the county at large other than those living in the city of Helena. This practice was condemned in State v. Hay, 120 Mont. 573, 194 P.2d 232, and cases therein cited. The difference between the instant case and State v. Hay is that in the latter case the challenge was interposed on the day set for trial and securing jurors from jury box No. 1 would cause undue expense and delay within the meaning of the statute and therefore the challenge came too late. State v. Pippi, 59 Mont. 116, 195 P. 556. Here the challenge to the panel was interposed in time to have secured additional jurors in the statutory manner.

This court in State ex rel. Adami v. Lewis and Clark County, Mont., 220 P.2d 1052, determined that the term of the grand jury of which Matthew Vook, the prosecuting witness, was a member, expired by operation of law on September 11, 1949.

The statutory definition of embracery is corruptly attempting to influence a grand juror so that the offense may be committed even though the offender fail to accomplish his object. R.C.M.1947, § 94-806. But even an attempt must be directed at an object upon which it is possible to commit the crime. 1 Burdick, Law of Crime, §§ 143, 144; 14 Am.Jur., Criminal Law, § 70, p. 818.

After September 11, 1949, Matthew Vook was no longer a grand juror; he had been discharged by operation of law. Therefore, even though the defendant thought he was influencing a grand juror in actuality he was not and the crime of embracery could not be committed. State v. Taylor, 345 Mo. 325, 133 S.W.2d 336.

All evidence of acts committed after September 11, 1949, should have been excluded and the time during which the defendant allegedly attempted to influence grand juror Vook limited to the period when Vook was a duty and regularly impaneled grand juror.

A motion for a new trial was made upon the ground that the verdict was contrary to the evidence. This motion was overruled. Specification of error No. 2 assigns error for overruling such motion and specification No. 3 recites that 'the verdict is contrary to the evidence and the law.' These specifications were not urged in the appellant's brief.

A good part of the evidence introduced related to conversations between the defendant and grand juror Vook after the discharge of the grand jury. Since it is impossible to determine the effect of this evidence on the minds of the jurors this alone would justify reversal. But disregarding such inadmissible evidence, there are acts that took place before the discharge of the grand jury which would sustain a conviction, so that we cannot say as a matter of law that the cause should be dismissed. Vook testified that the defendant came to see him on July 25, 1949, and they talked for half to three-quarters of an...