State v. Rodden
| Decision Date | 06 October 1972 |
| Docket Number | No. 10990,10990 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. Donald Larry RODDEN, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Thomas R. Vickerman, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Gordon Mydland, Atty. Gen., Pierre, on the brief.
A. P. Fuller, Lead, for defendant and appellant.
Defendant was convicted of attempted burglary. On appeal he asserts the trial court erred by proceeding under SDCL 16--13--43 in procuring additional jurors after the panel had been exhausted, claiming it denied defendant due process of law and equal protection of the law. SDCL 16--13 provides for the compilation of a jury list from which jurors are selected for service in the various courts. It is from this list that jurors are drawn and summoned to appear in a number designated by judges of courts involved. This group is referred to as the regular panel.
It appears this panel of the petit jurors was exhausted by challenges of the attorney; the court ordered the sheriff 1 to summon a sufficient number of persons having the qualifications of jurors to complete the number requisite for the trial of the action as authorized by SDCL 16--13--43. 2 That section, which had its origin as § 12, Ch. 19, S.L. 1867--8 reads:
'Whenever the panel of petit jurors shall be exhausted by the challenges of either party in any action, the judge of the court shall order the sheriff, deputy sheriff, or coroner to summon, without delay, a sufficient number of persons possessing the qualifications of jurors to complete the number requisite for a jury in that particular case.'
As stated, it is this section defendant challenges as unconstitutional, though counsel candidly admits court opinions sustain similar statutes, among which are Losieau v. State, 157 Neb. 115, 58 N.W.2d 824; Tarrence v. Commonwealth, Ky., 265 S.W.2d 40; Negra v. L. Lion Sons, Co., 102 Cal.App.2d 453, 227 P.2d 916, and People v. Siciliano, 4 Ill.2d 581, 123 N.E.2d 725.
In People v. Kelhoffer, 181 Misc. 731, 48 N.Y.S.2d 771, aff. 292 N.Y. 622, 55 N.E.2d 503, there was a shortage in the jury panel; the trial judge under a similar statute directed a marshal to summon additional jurors for service and one of them served on the jury which convicted defendant. The court wrote:
See also State v. Nagele, 80 S.D. 625, 129 N.W.2d 537; 47 Am.Jur.2d, Jury, § 160, and 50 C.J.S. Juries § 184 et seq.
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Whitepipe v. Weber
...see State v. Iron Necklace, 430 N.W.2d 66, 77 (S.D.1988); State v. Christians, 381 N.W.2d 214, 215 (S.D.1986); State v. Rodden, 86 S.D. 725, 726-27, 201 N.W.2d 232, 233-34 (1972); SDCL 16-13-31) and his attempt to recast the issue in a constitutional light (structural error and ineffective ......
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State v. Cody
...Service, Inc. v. Welch, 308 N.W.2d 570 (S.D.1981); People In Interest of T. L. J., 303 N.W.2d 800 (S.D.1981). In State v. Rodden, 86 S.D. 725, 201 N.W.2d 232 (1972), this Court upheld the constitutionality of a similar provision, SDCL 16-13-43, which Whenever the panel of petit jurors shall......
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State v. Henry
...a cold night, breathing heavily and perspiring. This is all circumstantial evidence and we believe it to be sufficient. State v. Rodden, 1972, S.D., 201 N.W.2d 232, 234. These issues were presented and argued to the jury whose conclusion is based upon competent The defendant also complains ......
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State v. Johnson, 61868.
...the selection of talesmen or additional jurors by the sheriff have been held not to involve constitutional violation. State v. Rodden, 86 S.D. 725, 201 N.W.2d 232 (1972). See also State v. McCambry, 225 Kan. 803, 594 P.2d 222, 224-22534 Absent some showing of prejudice to the defendant, the......