Stone v. Saunders

• Decision Date: 16 June 1899
• Citation: 106 Ky. 904,51 S.W. 788
• Parties: STONE, Auditor, v. SAUNDERS. [1]
• Court: Kentucky Court of Appeals

51 S.W. 788

106 Ky. 904

STONE, Auditor, v. SAUNDERS. ^[1]

Court of Appeals of Kentucky.

June 16, 1899

Appeal from circuit court, Franklin county.

"To be officially reported."

Action by L. Saunders against S. H. Stone, auditor, to compel defendant to draw his warrant in favor of plaintiff. Judgment for plaintiff, and defendant appeals. Affirmed.

W. S Taylor and M. H. Thatcher, for appellant.

N. L Bronaugh, for appellee.

HAZELRIGG C.J.

The question on this appeal is whether the regular panel of the petit jury, as provided by the act of May, 1893 (chapter 74 Ky. St.), shall consist of 24 or 30 members. The old law provided that the jury commissioners, at a given term of court, should select 100 persons, or less if so directed by the circuit judge, to serve as petit jurors at the next term of court; and from a box containing the names of these possible jurors the commissioners were to draw "the names of thirty persons, one by one, and record the same," etc. This list was to be opened within 30 days of the next term, and the sheriff, at least 3 days before the first day of the term, was to summon the persons named thereon "to attend on the second day of the term as petit jurors"; and then follows this provision "The list shall be returned by the sheriff on the first day of the term, with a certificate thereon of the date and manner in which each juror was summoned, from which list twenty-four shall be selected from those summoned in the order in which their names appear thereon, who shall compose the regular panel." When our lawmakers, in 1893, came to revise the manner of selecting juries, they undertook to gather together or unite the somewhat fragmentary and independent provisions respecting grand and petit juries found in our law, and make the same provisions cover the mode of selecting both grand and petit jurors. After providing for the placing of a number of names, written on slips, in a prescribed drum or wheel case, the provisions of the law pertinent to the question involved here are that the commissioners (section 2242, Ky. St.) or the judge (section 2243, Id.) shall draw therefrom a sufficient number of names to procure 20 persons, qualified, as hereinafter provided, to act as grand jurors, and these names were to be placed in a list, from which list the next grand jury for the county should be impaneled as thereinafter directed. The drum or wheel case was then to be revolved or shaken up, and the commissioners were "to draw therefrom, one by one, the names of thirty persons, and record the same," etc., and "from which list of thirty names the next petit jury for said county should [shall] be selected and impaneled," etc. The language of section 2243 is, "From the list of twenty names the next grand jury shall be drawn, and from the list of thirty names the next petit jury shall be drawn as hereinafter directed." Section 2246 then provides for the opening by the clerk of the envelopes containing the two lists, and the summoning of the jurors, and the return of the sheriff; "from which lists, respectively, the regular panels of the grand and petit juries shall be selected in [the] order in which their names appear." A succeeding section (2248) provides that "a grand jury shall consist of twelve persons," etc., but there is no law fixing the number of the panel of the regular petit jury, although a subsequent section (2252) provides that "a petit jury in the circuit court shall consist of twelve persons." A provision is also found (section 2247) to the effect that the judge during the term, if the regular panel is for any reason exhausted, may draw from the drum or wheel other persons to act as grand or petit jurors. These provisions seem to be the only ones, either of the old or the present law, possibly affecting the question. It is to be understood at the outset that by the expression "regular panel" is to be meant the number of persons who are to constitute the regular attendance of the court during the term as regular jurors that is, as the "standing jury." This panel or standing jury, we are to remember, is to be obtained from the list of 30 names, and the names of these...