Territory v. Harding

• Decision Date: 10 January 1887
• Citation: 6 Mont. 323
• Parties: TERRITORY v. HARDING.
• Court: Montana Supreme Court

6 Mont. 323

TERRITORY

v.HARDING.

Supreme Court of the Territory of Montana.

January 10, 1887.

Appeal from Beaverhead county, Second judicial district.

Indictment for murder. Conviction below. Defendant appeals.

Campbell & Duffy, for appellant, Harding.

Robert B. Smith and C. W. Turner, for the Territory.

WADE, C. J.

This is a case of murder, and the defendant is under sentence of death. He asks to have the judgment against him reversed for the following reasons, viz.: First, that one of the grand jurors who composed the grand jury that found and returned the indictment against him was an alien; second, that the indictment was not signed by the district attorney of the Second judicial district; and, third, that the court erred in overruling his motion for a continuance.

1. In support of the proposition that the indictment was found by a grand jury not legally constituted, the defendant made and filed an affidavit setting forth that one Lambert Eliel, who was a member of said grand jury, was not, at the time he so acted as such, a citizen of the United States, and that the defendant did not have knowledge of this fact until after such indictment had been found and returned into court. The territory does not controvert this statement by the defendant, and, for the purposes of this case, it must be taken as admitted that the said Eliel, at the time of so serving on said grand jury, and the finding and return of said indictment, was not a citizen of the United States, and that this fact was unknown to the defendant at that time.

A person who is not a citizen of the United States, and has not declared his intention to become such, cannot lawfully serve as a grand juror in this territory, if advantage of this disability is taken at the proper time. But our statute provides that any male person of lawful age, who is a citizen of the United States, or who has declared his intention to become such, who is a tax-payer, and a bona fide resident of the county, shall be competent to serve as a grand or trial juror. Rev. St. § 780, p. 571. The defendant does not question the validity of this statute.

It does not appear in the record, and there is no intimation or claim anywhere, that this grand juror had not declared his intention to become a citizen. The presumption is that the board of county commissioners, whose duty it is to select grand jurors, performed their duties according to law, and selected grand jurors having the qualifications prescribed by the statute, until the contrary is made to appear. Therefore, if a defendant proposes to attack the competency of a grand juror, he must cause his incompetency to appear. The record in this case is an admission that the grand juror Eliel had declared his intention to become a citizen, and therefore that he was a competent grand juror.

Aside from all this, it conclusively appears from the record that the defendant, in pursuance of the statute, was given an opportunity to object to said grand jury, and thereupon waived all challenges to the panel and polls of said jury. The record recites “that, at the impaneling of the grand jury aforesaid, the defendant was personally present in open court, and was also then and there represented by counsel, and then and there waived all challenges to the panel and the polls of said grand jury.” Our statute provides that “when a party has been held to answer for an offense, and is in custody of the officer, it shall be the duty of the judge presiding, before the grand jury is sworn, to direct the sheriff of the county to bring such person into court, and there notify him of his rights in relation to the challenging of the jury, and, if necessary, to appoint counsel for him. If such person then fails to challenge the grand jury, or any member thereof, he shall be deemed to have waived all objection to the same.” Rev. St. § 121, p. 305.

The defendant knew for what he was brought into court; for he answered and said that he waived all objections to the panel and to the polls of the grand jury. Having had this opportunity, and failing to exercise his right of challenge, the statute declares that he thereby waives all objections to the grand jury. If, after failing to exercise his right of challenge,-if after lookingupon the grand jury, and thereafter waiving all objections to the same,-he thereby declares himself satisfied with the grand jury, and asserts his willingness that each and every member thereof should examine his case, and he thereby promises to abide the result of such examination; if, after looking upon the array of grand jurors, and making no objection to any one of them, and he thereafter ascertains that one of the grand jurors is not a citizen, or has not declared his intention to become such,-his after-acquired knowledge conclusively shows his neglect and laches in making the proper inquiries at the time the opportunity was given him of exercising his right of challenge. At that time the very least amount of diligence and care would have prompted the inquiry of each of the jurors if they were citizens of the United States, or if they had each declared their intention to become such. And so, if the defendant was indicted by an incompetent grand jury, it was his own request that brought about this result; and having in effect declared, before the grand jury was sworn, that he was satisfied with each member thereof, and content to have them investigate and pass upon the charge against him, so far as to say whether or not he should be formally accused of crime, it is now too late for him to object to said grand jury, and his right is gone.

2. The statute provides that “each indictment must be signed by the attorney prosecuting.” Rev. St. § 156, p. 309. Objection is made to this indictment for that it was not signed by W. Y. Pemberton, the district attorney for the Second judicial district, or by C. J. Walsh, the deputy district attorney for that district, but that it was signed by “Robert B. Smith, special district attorney for Second judicial district, Montana territory, appointed by the court to prosecute in the above-styled cause,” and therefore that said indictment is void.

The authority of Robert B. Smith in the premises came from an order and appointment by the court, as follows:

“IN THE DISTRICT COURT OF MONTANA TERRITORY, COUNTY OF BEAVERHEAD.

“Territory of Montana vs. Thomas H. Harding.

“ORDER OF COURT.

“At a regular term of the district court of Beaverhead county, Montana territory, it appearing to the court that W. Y. Pemberton is absent from the county of Beaverhead, and that there is no qualified or acting prosecuting attorney for the territory now present at court, it is therefore ordered by the court that Robert B. Smith, Esq., be, and he is hereby, appointed to represent the territory in the above-entitled cause, and to prosecute the same both before the grand jury and on the trial thereof.”

The statute also provides that the district attorney for each district shall be public prosecutors in their respective districts, and shall sign all bills of indictment that may be found by the grand jury. Rev. St. § 57, p. 414. It is further provided that the indictment shall be sufficient if it can be understood therefrom that the indictment was found by the grand jury of the county in which the court is held; that the defendant is named or described in the indictment as a person whose name is unknown to the grand jury; that the offense was committed within the jurisdiction of the court, or triable therein; that the offense charged is clearly set forth in plain and concise language, without repetition; and that the offense charged is stated with such a degree of certainty that the court may pronounce judgment upon conviction, according to the right of the case. Rev. St. § 170, p. 311. The statute also provides that the indictment shall be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases: When it is not found indorsed or has not been presented as prescribed by this act; (criminal probate act;) where the names of the material witnesses examined by the grand jury are not inserted at the foot of the indictment, or indorsed thereon; when any person has been permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration, except those allowed by law. Id. § 205, p. 315.

The expression of these particulars would seem to be the exclusion of all others; and if the indictment contains what the statute requires, and is not obnoxious to any of the particulars above named, then it cannot be attacked by a motion to quash, or, if it is, such a motion ought to be overruled. The failure of the district attorney to sign an indictment would not, therefore, seem to be a fatal omission; but, be this as it may, the indictment in this case was signed by Robert B. Smith, the attorney prosecuting, deriving his authority so to do from the foregoing order of court; and this presents the inquiry whether the court possessed the power and authority to make such an order. There seems to have been no objection to the appointment of Smith. The necessity for such an appointment appears in the order. The recitals therein are like the findings or judgment of a court, and cannot be attacked by a mere affidavit after the fact. If the district attorney had been present, or if his attendance upon court could have been procured, the fact ought to have been made known pending the appointment of Smith. This seems to have been the situation: The district attorney was absent from the county, and there was no one present qualified to act as prosecutor for the territory. Thereupon the court appointed Robert B. Smith to represent the territory, and to prosecute this cause.

No doubt, it is the duty of the district attorney to attend court, to sign indictments, and to prosecute for the territory. But if he fails to do his duty; if h...