State v. Stokely

• Decision Date: 01 January 1871
• Citation: 16 Minn. 249
• Parties: STATE OF MINNESOTA v. THOMAS H. STOKELY.
• Court: Minnesota Supreme Court

16 Minn. 249

STATE OF MINNESOTA

v. THOMAS H. STOKELY.

Supreme Court of Minnesota.

Appeal by defendant from an order of the district court, counties of St. Louis, Lake, Carlton, and Itasca, denying a new trial.

The indictment was against defendant and several others for murder committed in the county of St. Louis. St. Louis is an organized county, and the unorganized counties of Lake, Carlton, and Itasca were attached to it for judicial purposes. The grand jury was drawn from the four counties, and the indictment was entitled in the name of the four. In the court below the defendant moved to quash the indictment, and also demurred to it, upon that ground. The motion and demurrer were both overruled.

The only instruction to the jury on which any question is raised was "that the jury are at liberty to find a verdict of guilty of murder in the second degree, and there is evidence in the case that they may consider in that respect."

The facts presenting the other points in the case are clearly set forth in the opinion.

H. J. Horn and I. V. D. Heard, for appellant.

F. R. E. Cornell, Atty. Gen.

RIPLEY, C. J.

The defendent contends that chapter 112 of the Laws of 1867, (p. 156,) only applies to the unorganized counties attached to an organized county for judicial purposes, and that St. Louis, the county in which the offense was committed, being an organized county, the indictment should have been found by a jury of that county.

It cannot be denied that the wording of the preamble, and of portions of the act, countenance the position. It is evident, however, from the whole of sections 1 and 2, when read together, that the expression "such counties," in the third line of section 1 and twelfth line of section 2, is meant to include, not only the counties attached to another for judicial purposes, but the county to which they are attached. If so, this indictment is properly entitled and found.

The construction put upon the act by defendant, moreover, would require one grand jury for St. Louis county, and another for the counties attached to it, and not only so, but that separate panels of petit jurors should be drawn and attend the court, — one for St. Louis, and another for the counties attached to it. It is evident from the whole act that the legislature intended no such innovation.

The question, however, which the defendant raises, is really not an open one. Though not raised by counsel, the court, nevertheless, in the State v. Gut, 13 Minn. 343, (Gil. 315,) in considering this act, construe it in the sense opposed to defendant's theory, since it is there held (p. 348, Gil. 322.) that under it jurors for the trial of crimes committed in Brown are chosen, as before it passage they were chosen, from said county and the counties attached to it for judicial purposes. The offense in that case was committed in Brown county, and the indictment was entitled as in this case, and found by a grand jury similarly selected, viz., from Brown and the counties so attached, and under the law the same rule as to the counties from which they are to be selected applies to grand and petit jurors.

The next objection is that the court erred in allowing counter-affidavits on the motion to change the venue. To authorize such change it is well settled, on general principles, that facts must be shown sufficient to satisfy the court that it is necessary in order to procure an impartial trial, and by our statute they are to be shown on affidavit; but though section 1 of chapter 113 of the General Statutes impliedly, though not in terms, refers to a change made at the request of the defendant, it contains nothing to restrict the court to affidavits presented by him, in its consideration of the question.

If, indeed, the district court has no discretion in the matter, but a change is to be granted whenever the defendant's affidavits state facts and circumstances sufficient to establish a prima facie case, its action in this case might, perhaps, have been properly enough assigned for error; counter-affidavits being, on this theory, necessarily inadmissible, and the defendant's affidavits being sufficient to make out such prima facie case, according to the construction put upon similar language in the statute authorizing service of a summons by publication, where it appeared by affidavit, to the satisfaction of the court, that the defendant could not by due diligence be found in the state. Mackubin v. Smith, 5 Minn. 367, (Gil. 296.)

The act before us, however, is but in affirmance of the common-law right of the defendant to an impartial jury of the county where the offense was committed, subject to the right of the court to change the place of trial when such impartial jury could not be had there. State v. Miller, 15 Minn. 344, (Gil. 277.) Such right of the court is as much to be exercised, in its sound discretion, under this statute, as it was at common-law; (Maton v. People, 15 Ill. 536; Mask v. State, 32 Miss. 426;) and its common-law power to hear evidence in opposition to as well as in favor of the change, remains, in the absence of any statutory inhibition, wholly unimpaired. Counter-affidavits are receivable at common law, and such has been the practice under this statute.

It has always been held that the inability to obtain a fair and impartial jury should be clearly established, and a prima facie case of undue feeling and excitement has been held insufficient, as easily established in most cases of crime, especially of a flagrant character, and the opposing affidavits are relied on to rectify any partial or limited views thus presented of the state of the public mind. People v. Bodine, 7 Hill, 147-149.

This application for a change of venue being addressed to the sound discretion of the district court, its decision is not reviewable in this court, in the absence of any abuse of such discretion.

The fact is relied on that the jurors summoned by virtue of the original venire being discharged on a challenge to the panel, a special venire for 24 was returned, all of whom were discharged on challenges, and thereupon a special venire of 72 was had, from whom a jury was obtained, and that after defendant was convicted, the case of Zaracher under the same indictment was called, and after an attempt made to impanel a jury by calling several jurors, and examining their qualifications, the judge announced that as it seemed impossible to obtain a jury, if the defendant would renew the motion made by Stokely for a change of venue it would be granted; which motion was thereupon made upon the affidavits filed in Stokely's case, and was immediately granted.

The case does not show upon whose challenges the first special venire was exhausted, nor that a jury was not obtained from the second without any challenge interposed by the defendant or state. Nor does the fact that after the impression made by Stokely's trial so many of the jurors summoned should have appeared not to be qualified to decide impartially in Zaracher's case, as to have led the judge to the conclusion that an impartial jury could not be obtained, have any tendency to show that such a jury could not be and was not obtained in Stokely's case.

Though the motion in Zaracher's case was made on the affidavits filed in Stokely's case, it is evident that it was not granted on the showing made by them, but upon the judge's own experience above mentioned.

Upon the affidavits and counter-affidavits used in Stokely's case, no ground is perceived upon which an allegation of abuse of discretion could be successfully founded, nor does the defendant make any.

The special venire from which the jury was selected specified the number, but not the names, of the persons to be summoned, and said jurymen were consequently selected by the sheriff and not by the court. The defendants objected to said venire, and each of the persons so summoned, on the ground that said venire should have specified the names of the persons to be summoned, and that the selection by the sheriff was unauthorized by law. The objection was overruled, and defendant excepted.

The objection was properly overruled.

By law, the court, in a case like the...