State v. Shanley

• Decision Date: 22 August 1905
• Citation: 104 N.W. 522,20 S.D. 18
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. HENRY SHANLEY, Plaintiff in error.
• Court: South Dakota Supreme Court

20 S.D. 18

104 N.W. 522

STATE OF SOUTH DAKOTA, Defendant in error, v. HENRY SHANLEY,

Plaintiff in error.

South Dakota Supreme Court

Error from Circuit Court, Sanborn County, SD

Hon. Frank P. Smith, Judge

Reversed

T. H. Null and J. E. Whiting

Attorneys for plaintiff in error.

B. W. Baer, State’s Atty.

Philo Hall, Attorney General

S. A. Ramsey, A. F. Chamberlain, Aubrey Lawrence,

Attorneys for the State.

Opinion filed Aug. 22, 1905

HANEY, J.

Defendant vas charged with shooting- at one Andrew Striegel with intent to kill him, the said Striegel, was found guilty as charged, his motion for a new trial was denied, and he was sentenced to imprisonment in the penitentiary for six years. It is contended that the court erred in disallowing defendant’s challenge to the grand jury panel. So far as necessary to an understanding of this contention, the record reads as follows:

“Upon the grand jury being called that found the indictment in this case, the defendant interposed the following challenge to the panel: ‘The defendant at this time interposes a challenge to the panel upon the ground … that at the meeting of the county commissioners in July, 1903, the county commissioners directed the clerk of courts to strike certain names from the list of 200 which had been theretofore properly drawn and placed upon the list; that some of the persons whose names were so stricken from the list of 200 were at that time qualified to act as jurors in the county of Sanborn; that said names were omitted from the list of 200 names, and other names were supplied by the county commissioners to complete the list of 200; and that at the time the present grand jury and petit jury were drawn for this term of court none of the names so stricken from the list were included in the list of 200 from which this jury was drawn.’”

It was shown by oral testimony received without objection that at the July, 1903, meeting of the county commissioners, they had the clerk’s list of 200 names before them, and orally, directed the clerk to strike off certain names. The vacancies thus created, together with those drawn at the previous term of court, were then filled so as to make a list of 200 names. The Code of Criminal Procedure contains these provisions:

“Sec. 165. The state, or a person held to answer a charge for a public offense, may challenge the panel of a grand jury, or an individual grand juror.

“Sec. 166. A challenge to the panel may be interposed by either party for one or more of the following causes only: (1) That the requisite number of ballots was not drawn from the jury box of the comity or subdivision. (2) That notice of the drawing of the grand jury was not given. (3) That the drawing was not had in the presence of the officers designated by law, or in the manner prescribed by law.”

“Sec. 173. Neither the state, nor a person held to answer a charge for a public offense, can take advantage of any objection to the panel or to an individual grand juror unless it be by challenge, and before the grand jury is sworn, except that after the grand jury is sworn, and before the indictment is found, the court may, in its discretion, upon a good cause shown, receive and allow a challenge.”

As it does not affirmatively appear that defendant’s challenge was interposed before the grand jury was sworn, and because the ground of challenge relied upon is not one recognized by the statute,the ruling of the circuit court in relation thereto must be sustained.

The evidence tended to establish this state of facts: On the night of March 30, 1904, the defendant and several other young men were having “a hot time” in the city of Woonsocket. They frequently visited the saloons, sang songs, told stories, were more or less intoxicated, and conducted themselves in the manner usual on such occasions. About 11 o'clock the city marshal, who had been with “the boys” at times during the evening, endeavored to persuade one of them to retire to the hotel. Defendant interfered, and was knocked down by the marshal. About one hour later, when the marshall and nearly all of “the boys” were lunching in the rear room of a building on Main street, the defendant appeared in the door between the front and rear rooms of the restaurant with a shot gun in his hands. When the marshall saw him he called out for some one to “grab the gun.” Instantly he and Andrew Striegel arose from their seats at the “lunch counter,” and started towards the defendant, who began stepping backwards into and through the front door. As he did so he twice discharged the shotgun in the direction of the rear room. The second discharge wounded Striegel slightly on the arm. As the defendant withdrew towards the front door and out into the street, he was followed by the marshal who fired a revolver four or five times without hitting anything except a hanging lamp. There was evidence tending to show that the defendant had threatened lie marshal, and that he addressed him with a vile epithet before firing the first time; that the marshal did not draw his revolver until after the defendant fired the second time; that the defendant,...