State v. Second Judicial Dist. Court
| Decision Date | 08 December 1904 |
| Citation | 78 P. 769,31 Mont. 428 |
| Parties | STATE ex rel. CLARK v. SECOND JUDICIAL DIST. COURT et al. |
| Court | Montana Supreme Court |
Original application by the state, on the relation of William D Clark, for a writ of prohibition to the Second Judicial District Court and to the Honorable E. W. Harney, district judge. Dismissed.
See 76 P. 1005.
C. F Kelley, E. S. Booth, and E. M. Lamb, for relator.
Peter Breen and Dan Yancey, for respondent.
On January 23, 1903, the jury commissioners of Silver Bow county presented to the clerk of the district court of that county a list of names of persons selected for jury service for the year 1903, containing about 4,500 names, to which list the following sworn statement was attached:
On December 23, 1903, in department No. 1 of the district court of Silver Bow county, an order was made directing the impaneling of a grand jury. This order was executed, and such grand jury, having been impaneled and charged, proceeded to the investigation of matters called to its attention, and afterwards returned into court an accusation in writing, charging W. D. Clark with various acts of misfeasance and malfeasance in office; W. D. Clark being a member of the board of county commissioners, chairman of such board, and the same person who, as such chairman, verified the list of persons selected for jury service as above set forth. This grand jury also returned numerous indictments against Clark, who was thereafter arrested and admitted to bail, and, when arraigned, made objection to the accusation and to the several indictments on a number of grounds, particularly specifying, among others, that the list of jurors from which the panel of grand jurors was selected was not drawn in accordance with the provisions of the law, in that (a) the jury commissioners did not meet at the time and place designated by law for drawing such list; (b) that the list of names returned to the district clerk was not drawn from the assessment roll for 1902; (c) that such list was not selected by the jury commissioners, or a majority of such board acting as such, but by one Lottie C. Smith, a nonofficial person, who selected such list from a nonofficial list of persons, and that such list contains names of persons whose names do not appear on such assessment roll. Upon the trial of this objection or challenge evidence was heard by the court, from which it appeared that on the second Monday of January, 1903, the chairman of the board of county commissioners, the county treasurer, and the county assessor met in the county clerk's office; that they employed Lottie C. Smith, a typewriter, to write down the names; that each of the commissioners separately called off some of the names comprised in the list from a book used by the assessor's deputies in making assessments; that a considerable portion of the names were simply copied by Miss Smith without any member of the commission being present; that, after the list had been completed by the stenographer, the affidavit of the commissioners above was attached to such list, and the same then filed in the office of the district clerk. This objection or challenge was overruled, and exception taken. A challenge to the individual grand jurors was also interposed and overruled. Thereafter an application was made to this court for a writ of prohibition to prevent the district court from trying the defendant, Clark, upon any of the indictments so found. Upon the return this court dismissed the proceedings so far as they affected the action in the district court with reference to the indictments, and this cause is now submitted on the question whether this court will prevent by prohibition the lower court from proceeding to try Clark on the accusation returned against him.
The position assumed by the relator in the court below was this, in effect: I object to being tried on an accusation returned against me by this grand jury, for the reason that I, as a member of the jury commission, either willfully or in absolute disregard of my official duties failed and neglected to perform such duty, and, as the other members of such commission likewise failed in the performance of the duty imposed by law on them as members of such commission, therefore our own nonfeasance has left the county without any jury list from which a lawful grand jury might be selected to accuse, or a petit jury had to try, me for any criminal charge which might be presented against me; and this, too, notwithstanding I verified the list made and filed with the district clerk.
It may be said in passing that in the affidavit above, where the figures "1903" appear, there is clearly a clerical misprision. From the evidence taken on the hearing on the challenge to the grand jury it appears that what was intended in the affidavit was "1902," as the assessment roll for 1903 was not in existence at the time the affidavit was made.
The first question with which we are confronted is this: May a member of the jury commission, who by his own nonfeasance or active misfeasance in office as a member of such commission has rendered the selection of the jury list so irregular that as to others it might be invalid, take advantage of his own wrongdoing when called upon to answer a charge presented by a grand jury selected from such jury list? Or, in other words, will the courts hear a member of such commission, who has solemnly sworn that the jury commissioners did meet at the time and place designated by law, and did select the jury list from the last assessment roll, and that such list is correct and accurate, say now that the matters set forth in such affidavit are untrue, in order that he himself may escape the consequences of a trial upon an accusation presented by a grand jury selected from such list? The plainest dictates of reason would say at once, "No." Whatever may be the rights of others, not members of such commission, to complain of the irregularities in the selection of such jury list, we hold that this relator's mouth is closed when he assumed to act as such commissioner, and has solemnly declared that the mandates of the law were met and fully complied with, to say that in fact he, as well as the other members of such commission, who also assumed to act as such, had so willfully or negligently disobeyed the law as to render the selection of a jury list wholly nugatory. To say that the relator's position is tenable would be tantamount to saying that two members of a jury commission may commit any crimes known to the law, and absolutely defy punishment, or even trial, during their terms of office, by designedly vitiating the jury list and taking advantage of their own wrongdoing. It is not possible that any such condition of affairs can exist under, or be countenanced by, the law.
There is no reason apparent why the doctrine of estoppel which pervades the civil department of our law ought not to be applied in the criminal law. In State v. Spaulding, 24 Kan. 1, the...
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