State v. Ryan
| Decision Date | 01 December 1886 |
| Citation | 30 N.W. 397,70 Iowa 154 |
| Parties | STATE v. RYAN. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Audubon district court.
Indictment for murder. There was a verdict of murder in the second degree, judgment, and the defendant appealed.L. L. De Lano, for appellant.
A. J. Baker, Atty Gen., for the State.
The regular panel of trial jurors consisted of 94 persons,--that is, that number were drawn as provided by law,--but, upon being called, only 18 appeared, and the panel was exhausted before a jury was obtained for the trial of this cause. Prior to the commencement of the trial, and without knowledge that a jury could not be obtained from the regular panel, the court ordered that a special venire issue, and 40 persons were summoned to act as jurors. Such order was not entered of record, but the clerk certifies that the special venire was directed to issue “for the purpose of using the names of the jurors so drawn and summoned in the impaneling of a jury” in this case. The venire was issued, and 40 persons duly drawn and summoned; and, when the regular panel was exhausted, the defendant asked that the talesmen be drawn from the body of the county, which was refused by the court, and the sheriff was directed to call from the special venire the name of the first person so drawn and summoned, and in like manner to proceed and fill the panel. To the foregoing action and proceedings of the court the defendant objected, but his objections were overruled.
1. The defendant insists that as jurors in criminal cases shall be drawn and summoned as provided in the Code of Civil Practice, (Code, § 291,) therefore the special venire ordered by the court was unauthorized, and that when the regular panel was exhausted the remaining jurors should be drawn and summoned as provided in sections 231-241 of the Code. It is obvious, we think, that these latter sections make provisions for obtaining jurors for the term, and for the trial of all cases where the regular panel is not full, and that they have no reference as to the manner a jury may be obtained for the trial of a criminal action, when the regular panel is exhausted. Provision for such a contingency is made in section 4396 of the Code, which provides that the court may order the sheriff to summon jurors from the by-standers, or other persons, “for the trial of the indictment.” This is what the court did, and we fail to see any valid objection to the course adopted.
It is further objected that the court erred in directing the sheriff to call the names of the persons summoned as a special venire as they appeared on the list, instead of placing the names in a box, and making selections therefrom by lot. This precise question, we think, was presented and decided against the appellant in State v. Green, 20 Iowa, 424.
2. A witness was placed on the stand, and it was sought to prove by him a material fact, it must be assumed, and a question was asked him by the district attorney to which counsel for the defendant objected for certain stated reasons. Thereupon the district attorney said: ...
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