State v. Witt

• Decision Date: 06 February 1899
• Citation: 33 Or. 594,55 P. 1053
• Parties: STATE v. WITT.
• Court: Oregon Supreme Court

55 P. 1053

33 Or. 594

STATE v. WITT.

Supreme Court of Oregon

February 6, 1899

Appeal from circuit court, Marion county; George H. Burnett, Judge.

R.W Witt was convicted of the offense of having in his possession, with intent to exhibit the same, an obscene writing, and he appeals. Affirmed.

M.E Pogue, for appellant.

D.R.N Blackburn, Att. Gen., Sam'l L. Hayden, Dist. Atty., and J.H. McNary, for the State.

BEAN J.

The defendant was indicted and convicted of the crime of having in his possession an obscene writing, with intent to exhibit the same. After being sentenced, his counsel moved the court to set aside and vacate the judgment on the ground that the court was without jurisdiction to try the case because the grand jury which found the indictment against him was not legally constituted. This motion was denied, and the defendant appeals.

The facts upon which the motion was based are that, after the grand jury for the term had been duly and regularly impaneled and sworn according to law, one of their number became ill and was excused, and the court thereupon directed the clerk to draw by lot, from the jury box, another juror, to serve in his place, which was done accordingly, although at the time there were 12 jurors in attendance upon the court whose names were not in the jury box, they having been previously drawn and impaneled as jurors in a civil case then on trial. Thereafter the indictment upon which the defendant was tried and convicted was returned. The contention for the defendant is that the grand jury, as thus constituted, was an illegal body, because the constitution provides (Const. art. 7, § 18) that the grand jury shall be chosen by lot from the whole number of jurors in attendance at the court, and the argument is that the choosing of one member thereof contrary to the provisions of such section rendered the entire body illegal and its acts void. The authorities upon the general subject as to how, when, and to what extent a defendant may question the regularity or validity of a grand jury which returns an indictment against him are in confusion, but they are generally agreed that when an indictment is returned by a body composed of the requisite number of qualified persons, chosen under a valid law, any objection on account of irregularity in the manner of the drawing or forming of the grand jury, if permissible to the defendant at all, must be made before plea to the merits. Cooper v. State, 120 Ind. 380, 22 N.E. 320; State v. Collyer, 17 Nev. 275, 30 P. 891; Com. v. Parker, 2 Pick. 550; U.S. v. Gale, 109 U.S. 65, 3 Sup.Ct. 1. There is a distinction to be noted in the books between the acts...