State v. Smith

• Decision Date: 02 September 1930
• Docket Number: 6840.
• Citation: 232 N.W. 26,57 S.D. 292
• Parties: STATE v. SMITH. [*]
• Court: South Dakota Supreme Court

232 N.W. 26

57 S.D. 292

STATE v. SMITH. ^[*]

No. 6840.

Supreme Court of South Dakota

September 2, 1930

Appeal from Circuit Court, Lyman County; J. R. Cash, Judge.

H Smith was convicted of grand larceny, and he appeals.

Affirmed.

See also, 228 N.W. 240.

POLLEY J., dissenting.

J. W Jackson, of Kennebec, for appellant.

M. Q. Sharpe, Atty. Gen., and R. F. Drewry, Asst. Atty. Gen., for the State.

MISER C.

Appellant seeks to set aside his conviction on the ground that the trial court erroneously disallowed his challenge to the panel from which the jury was selected which found him guilty of grand larceny. The written challenge interposed at the trial and before any juror was sworn was as follows:

"Comes now the defendant, H. Smith, and challenges the panel upon the ground and for the reason that in the selection of the jury there was a material departure from the forms prescribed by the laws of the State of South Dakota, all of which was prejudicial to the substantial rights of the defendant, to-wit:

"First, in that the County Commissioners in selecting the jury list chose the same from the qualified list from the county at large without first apportioning to each of the organized townships and to each of the incorporated cities and towns and to the unorganized portion of Lyman County, South Dakota, the pro rata share of the names to be so drawn as provided by section 5287 of the South Dakota Revised Code of 1919.

"Second, in that the deputy of the Sheriff of Lyman County, South Dakota, at the time the trial jury was drawn for the November, 1927, term of the Circuit Court in and for the said County of Lyman, the same being the present term of the said Circuit Court assisted in drawing the trial jury for the said term of the circuit court and at the said term of the Circuit Court the said Sheriff of Lyman County, South Dakota, was disqualified by reason of being a party to a suit pending and noted for trial at this term of the said Circuit Court being case numbered 7137, or jury case number 19 on the trial calendar."

After challenging the panel, the defendant presented testimony in support of the first ground of challenge. As to the second ground of challenge, the state's attorney conceded "that the deputy sheriff of Lyman County assisted and was present at the drawing of the trial jury for the November, 1927 term of the Circuit Court," and also conceded that there was on the calendar for that term a civil action against the sheriff, which action grew out of his official duties as sheriff while acting under a search warrant. The challenge was disallowed and the jury was impaneled.

So far as material herein, section 4841, Rev. Code 1919, is as follows: "A challenge to the panel can be founded only on a material departure from the forms prescribed by law, in respect to the drawing and return of the jury. ***"

This was section 321, Rev. Code Crim. Proc., and is quoted and referred to by this court in State v. Morse, 35 S.D. 18, 26, 150 N.W. 293, 296, Ann. Cas. 1918C, 570, 573, as follows: "In so far as certain names were discarded, the objection, if it states facts, may be considered as an objection to the whole panel, but it is only a material departure from the forms prescribed by law in respect to the drawing of the jury (section 321, supra) that would be a ground of challenge under this objection. In New York we find that section 362, C. Cr. Proc., is virtually the same as our section 321, supra, except that the words 'to the prejudice of defendant' appear after the word 'departure.' By section 1, c. 280, Laws 1913, these words are as effectually written into our section 321, supra, as if literally incorporated therein. In a long line of decisions in New York, it is held that prejudice to the defendant must be shown in connection with the challenge. *** For failure to show prejudice, this part of the challenge must be held insufficient."

Section 1, c. 280, Laws 1913, referred to above, now appears as section 4936, Rev. Code 1919, which, so far as material, is as follows: "On the trial of an indictment or information exceptions may be taken by the defendant to the decision of the court upon a matter of law by which his substantial rights are prejudiced, and not otherwise, in any of the following cases: 1. In allowing or disallowing a challenge to the panel of the jury, or to an individual juror. 2. *** 3. ***."

Under the authority of State v. Morse, supra, it is necessary to determine whether prejudice to appellant has been shown. So far as the first ground of challenge is concerned, assuming that a sufficient challenge can be based upon irregularities in the preparation of the general list by the county commissioners (see, however, section 5290, Rev. Code 1919), the evidence adduced in support thereof showed no prejudice whatever. The proof does not show that the 200 names on the general list were not apportioned as fairly "among the several townships, cities and towns" in Lyman county as though the commissioners had painstakingly complied with the provisions of section 5287, Rev. Code 1919, instead of being apparently blissfully unaware thereof as might appear from the testimony. The proof in support of the first ground of challenge fails utterly to show prejudice to the appellant.

Appellant also fails to show prejudice from the disallowance of his second ground of challenge. Section 4842, Rev. Code 1919, requires the challenge to the panel to be taken before a juror is sworn, and that it be "in writing, specifying plainly and distinctly the facts constituting the ground of challenge." A challenge to the panel is not made in the heat and hurry of a trial but before a juror is sworn. It is in writing. There is no reason why it should not state "plainly and distinctly" for the information of the trial judge who must rule thereon "the facts constituting the ground of challenge." Section 5291, Rev. Code 1919, provides that: "In case the sheriff shall be disqualified by reason of being a party to any suit pending in the circuit court *** the coroner shall serve in place of the sheriff." Here the challenge does not state whether or not the coroner was present at the drawing of jurors, whether or not the disqualified sheriff was present, nor what the deputy sheriff did. Did the county auditor or county treasurer draw out of the box the tickets on which the clerk of courts had written the names? What did the deputy sheriff do? It is conceded that he "assisted and was present at the drawing of the trial jury." Section 5292 prescribes the manner of drawing the jury panel. Did the deputy sheriff do more than compare with the auditor and treasurer the names which the clerk of courts wrote on the tickets, or did he even do that? The challenge does not specify.

But, assuming that it was intended by the written challenge to state that neither the coroner nor the disqualified sheriff were present at the drawing, and that the disqualified sheriff acted through his deputy, the record is silent as to anything which the deputy sheriff did whereby appellant was prejudiced. The deputy sheriff may have been one of three who compared the names on the tickets with the names on the jury list, or he may not have done even that. In Thompson on Trials (2d Ed.) § 113, p. 126, it is said: "Irregularities in selecting the general jury list, in drawing the panel and in summoning those whose names have been drawn, as already seen, are properly objected to by a challenge to the array. *** As already seen [sections 33 and 34], in many jurisdictions the statutes governing these steps in the selection of a jury are regarded as directory merely. In these and in other jurisdictions, the analogous doctrine exists that informalities of this kind will not be permitted to vitiate a verdict, although they did not sooner come to the knowledge of the complaining party, unless positive injury is shown to have accrued therefrom. ***" Section 113.

Section 34 above referred to is in part as follows: "in like manner, statutory provisions respecting the drawing of the panel are generally regarded as directory merely, so that irregularities therein, unless plainly operating to the prejudice of the challenging party, form no ground for challenging the array."

Among the authorities cited by the author in support of that part of section 34 above quoted is Wilhelm v. People, 72 Ill. 468, which was cited by this court as an authority for its holding in State v. Morse, supra. In that case the Illinois court said: "It is not shown that any positive injury was sustained by the plaintiff in error in consequence of the refusal of the court to quash the panel, and we have heretofore held, under the law pursuant to which this jury was selected, that a mere irregularity in drawing the jury, where no positive injury is shown to have been done the accused, is not sufficient cause to sustain a challenge to the array. Mapes v. People, 69 Ill. 523."

The many cases reviewed in People v. Damron, 160 A.D. 424, 145 N.Y.S. 239, cited by this court in State v. Morse, supra, abundantly support the text above quoted.

Appellant relies upon Jones v. Woodworth, ...