The People v. Dunn

• Decision Date: 01 August 1866
• Citation: 1 Idaho 74
• Parties: The People v. Michael Dunn.
• Court: Idaho Supreme Court

1 Idaho 74

The People v. Michael Dunn.

Supreme Court of Idaho

August 1, 1866

JURY.-It is error for the court to draw a jury from a list prepared by the judge and sheriff until the regular panel is exhausted and that fact must appear from the record.

INSTRUCTIONS-REFUSAL.-Upon the trial of an indictment for murder, it is the duty of the court to give an instruction to the jury, if requested, that they can find the defendant guilty of a less grade of offense than murder in the first degree, if warranted by the evidence; and a refusal to give such instruction is error. (McBride, C. J., dissenting.)

APPEAL from the Second District, Boise County.

C. B Waite, District Attorney, for the People. E. W. McGraw, for the Appellant.

CUMMINS J.,

delivered the opinion of the court,

McBRIDE C. J., concurring in the judgment.

The grand jury regularly summoned prior to the convening of the February term, 1866, of the district court for Boise county, having transacted all the business properly coming before them, were, by the court, discharged, as were also the trial jury. Subsequent to this the crime of which defendant is accused was committed. Before the convening of the court, the probate judge and sheriff of the county had prepared a list of one hundred names of persons competent to serve as jurors, as required by statute, and deposited the same in a box provided for that purpose, from which jurors could be drawn as occasion

should require. From this number the first grand jury and the panel of petit jurors for the term were drawn, numbering in the aggregate thirty-nine, leaving sixty-one remaining in the box. After the homicide was committed, for which the defendant was subsequently indicted, the sheriff and presiding judge of the court prepared a list of names of persons, had them inserted in a venire, and summoned to attend as grand jurors. The grand jury thus obtained found the indictment upon which the defendant was put upon his trial. The petit jury before whom the defendant was tried and convicted were selected and summoned in the same manner; that is, the sheriff and the presiding judge of the court prepared a list of names of persons, deposited them in a box from which the clerk, under direction of the court, drew fifty names, placed them in a venire directed to the sheriff, and from this list of persons who were summoned was obtained the trial jury. It nowhere appears upon the record in this court that the list of one hundred names, prepared anterior to the first day of the term by the probate judge and sheriff, and deposited in a box, to constitute a jury list as provided by the jury act, was exhausted before the district judge and sheriff proceeded to prepare the list of jurors out of which the grand and trial jury were formed. Whereupon, the defendant assigns as error, among others by which he has been aggrieved, that he has not had the benefit of a jury drawn in accordance with the statute; that he has not had the benefit of any one of the one hundred names deposited in the jury-box, and yet it does not appear that those names were exhausted. For aught that the record shows, there were yet remaining in such box sixty-one names, which, under the provision of the statute, should have first been drawn and passed upon as jurors before the court could order the judge and sheriff to prepare a list of names from which to summon a jury, as was done.

Section 6 of the act concerning jurors provides that "when at any term of the district court, for the want of an assessment-roll, or sufficient time is not permitted in which to prepare and draw a list of jurors as provided in this act, or when from any

cause which may appear satisfactory to such district judge, such list has not been prepared or drawn, or the sheriff has not summoned such jurors, or the...