Varble v. Whitecotton
| Citation | 190 S.W.2d 244,354 Mo. 570 |
| Decision Date | 05 November 1945 |
| Docket Number | 39648 |
| Parties | Eri E. Varble, Petitioner, v. Thomas E. Whitecotton, Warden, Missouri State Penitentiary |
| Court | Missouri Supreme Court |
Habeas Corpus.
Writ quashed and petitioner remanded to custody.
H P. Lauf and W. C. Sanders for petitioner.
(1) The petit jury was illegally and unlawfully selected and summoned on October 29, 1930, under Article 3, Chapter 48, R.S. 1929 (now Article 4, Chapter 5, 1939) for the reason that under the fifteenth decennial census, April 1, 1930, Jackson County had a population of 470,454. State ex rel. Major v Ryan, 232 Mo. 77; Jarabek v. St. Joseph, 159 Mo.App. 505; Laws 1931, p. 257, Emergency Clause, Sec. 2; Sec. 8745, R.S. 1929, now Sec. 696, R.S. 1939; Secs. 8794 8809, R.S. 1929. (2) The courts of Jackson County, Missouri could not have selected a grand jury under Section 8838, R.S. 1929, now Sec. 794, R.S. 1939. Sec. 8839, R.S. 1929, now Sec. 795, R.S. 1939; Sec. 8840, R.S. 1929, now Sec. 796, R.S. 1939; Laws 1921 (Ex. Sess.), p. 73; Senate Journal, Regular and Extra Session, 51st Gen. Assembly, Vol. II, 1921; Proclamation of Hon. Arthur M. Hyde, Governor, p. 1200; Message of Governor, Wed. June 22, 1921, p. 1221, l.c. p. 1224, Para. 12; Art. IV, Sec. 55, Mo. Constitution; State ex rel. v. St. Louis, 2 S.W.2d 713. (3) The petit jury was illegally selected and summoned in violation of petitioner's fundamental, constitutional and statutory rights and contrary to the Constitution and the statutes of the State of Missouri, and the court had no jurisdiction and acquired no jurisdiction. (4) The grand jury was illegally selected, summoned and empaneled without right or authority to return indictments, and the circuit court had no jurisdiction and acquired no jurisdiction to try petitioner in violation of petitioner's fundamental, constitutional and statutory rights upon an indictment that was null and void. Secs. 12, 30, Art. 2, Mo. Constitution; Thompson v. Sanders, 70 S.W.2d 1051; State v. McKinley, 111 S.W.2d 115; Secs. 1623, 3892, R.S. 1939; State v. Warner, 165 Mo. 399; Ex parte Sydnor, 10 S.W.2d 63. (5) Petitioner's fundamental, constitutional and statutory rights were violated in selecting both grand and petit juries; the court had and acquired no jurisdiction; the indictment, trial and conviction were null and void, his constitutional and statutory rights were ignored and invaded, and petitioner is entitled to have relief by habeas corpus. State v. Richetti, 119 S.W.2d 330; Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579; 39 C.J.S., secs. 16, 20, 29, p. 518; Ex parte Farley, 40 F. 66; Ex parte McClusky, 40 F. 71; Fourteenth Amendment, U.S. Constitution; State v. Logan, 111 S.W.2d 110; 39 C.J.S., sec. 29, p. 518, sec. 16, p. 455, sec. 29, p. 520. (6) Courts will take judicial notice of population under the national census. U.S. Code Annotated, Title 13 (pocket index); City of Twin Falls ex rel. Cannon v. Koehler, 123 P.2d 715, 63 Idaho 562; Underwood v. Hickman, 39 S.W.2d 1034, 162 Tenn. 689; State ex rel. Wallace v. Summers, 9 S.W.2d 867; Sec. 8794, R.S. 1929, now Sec. 749, R.S. 1939; State v. Anslinger, 171 Mo. l.c. 610; Sec. 654, R.S. 1929.
J. E. Taylor, Attorney General, and Gordon P. Weier, Assistant Attorney General, for respondent.
The alleged illegal selection of a grand jury and petit jury may not be raised for the first time in a habeas corpus proceeding. 39 C.J.S., sec. 20, p. 462; Minochian v. Patterson, 143 A. 825; State v. King, 119 S.W.2d 277, 342 Mo. 975; 39 C.J.S., sec. 21, p. 469; Tucker v. Kaiser, 176 S.W.2d 622; State v. Carolla, 316 Mo. 213; State v. Hart, 66 Mo. 208; State v. Reed, 162 Mo. 312; State v. Sartino, 115 S.W. 1015, 216 Mo. 408; State v. Clifton, 73 Mo. 430; State ex rel. Graves v. Southern, 344 Mo. 14, 124 S.W.2d 1176; Ex parte Corder, 226 Mo.App. 479, 44 S.W.2d 179; State v. Richetti, 342 Mo. 1015, 119 S.W.2d 330; State v. Smallwood, 68 Mo. 192; State v. Connell, 49 Mo. 282; State v. Shawley, 334 Mo. 352, 67 S.W.2d 74; Sec. 698, R.S. 1939; State v. Miller, 90 S.W. 767, 191 Mo. 587; State v. Collins, 86 Mo. 245.
Michael W. O'Hern, Prosecuting Attorney, and Kaer P. Vanice, II, Assistant Prosecuting Attorney, amici curiae.
(1) Petitioner who never challenged or made a request to challenge a grand jury before it was empaneled, sworn and charged, cannot now challenge it when the record of the court clearly establishes that the grand jury panel was duly requested by the court and the grand jury was duly empaneled, sworn and charged as provided by law. State v. Connell, 49 Mo. 282; State v. Richetti, 119 S.W.2d 330; State ex rel. Graves v. Southern, 124 S.W.2d 1176; State v. King, 119 S.W.2d 277; State v. Freeze, 30 Mo.App. 347; State v. Reed, 162 Mo. 312; State v. Carolla, 292 S.W. 721, 316 Mo. 213; State v. Gowdy, 307 Mo. 352; State v. Crane, 202 Mo. 54, 100 S.W. 422; State v. Washington, 146 S.W. 1164, 242 Mo. 401; State v. Hoelscher, 267 S.W. 426; State v. Berry, 78 S.W. 611, 179 Mo. 377; Secs. 3514, 3515, R.S. 1929, now Secs. 3903, 3904, R.S. 1939. (2) The population of Jackson County, Missouri, on November 17, 1930, was less than 400,000, "according to the last preceding census." Harding v. Jefferson City, 147 S.W.2d 643; Dunn v. K.C. Cable Ry. Co., 131 Mo. 1, 32 S.W. 641; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. County Court, 89 Mo. 237; State ex inf. Crow v. Evans, 66 S.W. 355, 166 Mo. 347; State v. May, 67 S.W. 566, 168 Mo. 122; Reals v. Courson, 164 S.W.2d 309. History of Sec. 8794, R.S. 1929 is as follows: Laws 1905, p. 174; Laws 1907, p. 322; Sec. 7318, R.S. 1909; Laws 1911, p. 309; Sec. 6656, R.S. 1919; Sec. 8794, R.S. 1929, Laws 1931, p. 257; Sec. 749, R.S. 1939; Sec. 654, R.S. 1939. (3) Message of Governor Arthur M. Hyde to the 51st General Assembly (Extra Session) delivered on June 22, 1921, Appendix House and Senate Journals, 51st General Assembly, Volume I, 1921 Missouri at Page 9, Paragraph designated 12, which is as follows: "The subject of amending Section 6700, Revised Statutes of Missouri, 1919, covering the selection of grand juries in cities of three hundred thousand or over so as to include also counties of three hundred thousand or over." Authorized the amendment in Laws of Missouri 1921, First Extra Session, page 73. Art. 4, Sec. 15, Constitution of Mo. 1875.
This is an original proceeding in habeas corpus. On October 15, 1930 a Jackson County grand jury returned three indictments against petitioner, two for murder in the first degree and one for assault to kill. On November 17 one hundred fifty-five petit jurors were impaneled by the Jackson County Circuit Court. From this group the required number were called for petitioner's trial on that date. On November 19 the jury returned a verdict finding petitioner guilty of murder in the first degree and assessing his punishment as imprisonment for life. Although represented by counsel, no motion for new trial was filed. On December 1 he was sentenced in accordance with the verdict to the Missouri State Penitentiary for life from which he now seeks his release.
Petitioner's grounds for relief are that the petit jury which convicted him and the grand jury which indicted him were unlawfully selected in that the respective statutes under which the juries were selected were inapplicable in the case of the petit jury and unconstitutional in the case of the grand jury. These points are raised for the first time in this proceeding. They were not raised before, during or after trial in the original proceeding. No claim is made that petitioner did not have knowledge of the defects he now complains of or means of discovering such defects. No charge is now made that either jury, grand or petit, was unfair or prejudiced. The constitutional right of trial by a fair and impartial jury is not involved.
Petitioner's theory is that since the methods of selecting the petit and grand juries were under inapplicable and unlawful statutes the circuit court was deprived of jurisdiction to try petitioner and his conviction was void. We rule the statutes in question were applicable and legal and the conviction valid.
Because of procedural bars it would be unnecessary to consider on the merits the charges against the juries. However, we deem it important to remove any doubts about the validity of such statutes so important in the proper administration of the criminal code.
The rule is well settled that habeas corpus ordinarily will not lie because of error or irregularities in drawing, summoning or impaneling the petit jury. It is also well settled both by statute and decision in this State that an objection or challenge to the array of petit jurors must be made before the jury is sworn where the grounds of objection are known or means of their ascertainment available. State v. Rouner, 333 Mo. 1236, 64 S.W.2d 916; State v. Perno (Mo.), 23 S.W.2d 87; State v. Garrett, 285 Mo. 279, 226 S.W. 4; Sec. 698 R.S. 1939. Because of the argument advanced which we will next refer to there can be no question of the knowledge or the means of ascertainment thereof on the part of petitioner or his counsel.
The petit jury was selected under Article 3 of Chapter 48 of R.S 1929, now Article 4 of Chapter 5 of R.S. 1939. The article then was applicable to counties containing "according to the last preceding national census, not less than two hundred thousand inhabitants nor more than four hundred thousand inhabitants." Sec. 8794 R.S. 1929. On April 2, 1930 the fifteenth national decennial census was commenced, the enumeration to be taken as of April 1. On June 27 the Kansas City Star on its front page carried a news story released through the chamber of commerce that Kansas...
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