Viers v. State

• Decision Date: 19 July 1913
• Citation: 134 P. 80,10 Okla.Crim. 28,1913 OK CR 250
• Parties: VIERS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

134 P. 80

10 Okla.Crim. 28, 1913 OK CR 250

VIERS v. STATE.

Court of Criminal Appeals of Oklahoma

July 19, 1913

Syllabus by the Court.

The statute (section 3690, Rev. Laws 1910) requires that each jury list shall be made up of names of qualified taxpayers to be selected, as near as practicable in due proportion to the voting strength from all parts of the county; such names shall be placed in the jury box. Section 3692, Rev. Laws expressly provides that if a grand jury is ordered, the first names drawn, not to exceed 24, shall be summoned as grand jurors, and the grand jury shall be impaneled from said persons. Section 5714 provides that when a vacancy exists in the grand jury panel, the court must order the names of additional jurors to be drawn from the jury box in the same manner as the original grand jurors were drawn. In this case the record shows that upon the assembling of the persons summoned as grand jurors whose names had been drawn from the jury box, the court excused a number of those so summoned leaving an insufficient number to complete the grand jury panel. Thereupon the court directed that an open venire be issued to the sheriff for four talesmen to be summoned from the body of the county to complete the grand jury panel, and one member was summoned from the bystanders. Held, that the court had no power to order grand jurors to be summoned from the body of the county, and that a motion to set aside the indictment on this ground should have been sustained.

Under the statute (section 1563, Rev. Laws 1910) authorizing county attorneys in counties having a population between 25,000 and 35,000, to have one assistant, an additional assistant appointed by the county attorney with the assent of the board of county commissioners, is not a legally constituted assistant county attorney.

The county attorney is a quasi judicial officer, and he and his legally appointed assistant represent public justice exclusively, and stand indifferent as between the defendant and any private interest; and, while the county attorney may employ assistants in various ways not involving his official discretion or responsibility, he cannot delegate this discretion, except to an assistant duly appointed and qualified as provided by law.

Under section 5726, Rev. Laws 1910, the county attorney, or an assistant duly appointed and qualified as provided by law, may at all times appear before the grand jury, but no other person is permitted to be present during their sessions, except the members and a witness under examination, and no person is permitted to be present during the expression of their opinion and the giving of their votes upon any matter before them; and, when a special assistant county attorney, not legally appointed, appears before them for the purpose of performing the duties devolving upon the county attorney, indictments found by such grand jury, which were considered when such attorney was before them, on proper motion should be set aside.

Appeal from County Court, Tulsa County; N. J. Gubser, Judge.

M. B. Viers was convicted of violating the prohibitory law, and appeals. Reversed.

Davidson & Williams, of Tulsa, for plaintiff in error.

Chas West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE J.

Plaintiff in error was convicted in the county court of Tulsa county upon an indictment presented by a grand jury in the district court, which was duly transferred from the district court to said county court, wherein the defendant was charged with having unlawfully sold to one J. W. Turley, one glass of whisky, and in accordance with the verdict of the jury he was sentenced to confinement in the county jail for 90 days, and to pay a fine of $250. An appeal was perfected by filing in this court, February 21, 1912, a petition in error with case-made.

It appears from the record that upon his arraignment in the county court the defendant flled his duly verified motion to set aside the indictment in part as follows:

"Because the grand jury that found and presented the purported indictment herein was illegal, and all its acts and doings, including the finding and presenting of this purported indictment, are void, for the rea son that all the names of the persons constituting the said grand jury were not drawn from the jury list made out by the jury commissioners on the 9th day of January, 1911, and were not summoned as by law required. Charles Stout, one of the panel of said grand jury, was an illegal member of the same for the reason that his name is not on the jury list made out by the jury commissioners of Tulsa county, Okl., on the 9th day of January, 1911, or any time since, and because his name was not drawn from the jury box filled by said commissioners, as required by law, and because he was not summoned or impaneled as a member of said grand jury as provided by law; that prior to and during the entire session of the grand jury which found and presented this purported indictment, one Luther James, was the duly appointed, qualified, and acting assistant county attorney of Tulsa county, Okl., in force during the session of said grand jury; that the said county attorney of Tulsa county, Okl., had no authority to appoint or have more than one assistant county attorney; that during the deliberations of the grand jury that found and presented the purported indictment herein, one Phillip Kates was present in the grand jury room with said grand jury, pretending to act as assistant county attorney of Tulsa county, Okl., and examined witnesses before said jury, including witnesses upon whose testimony the purported indictment herein was found, and advised the grand jury as to their duties generally and specially, and that they should find and return an indictment against the defendant upon said testimony; that said Kates was not assistant county attorney of Tulsa county, Okl., at said time, and had no authority to be present in the grand jury room while the grand jury was in session, or examine witnesses before it, and by reason of these facts said purported indictment against the defendant was vitiated and was illegal and void."

Thereupon it was stipulated and agreed by and between the county attorney and counsel for the defendant, in part as follows:

"It is agreed that the name of Charles Stout, one of the panel of said grand jury, is not in the jury list made out by the jury commissioners of Tulsa county, Okl., on the 9th day of January, 1911, or at any time since, and that his name was not drawn from the jury box filled by said commissioners; that the Honorable L. M. Poe directed that a panel of four grand jurymen be issued, and that said Charles Stout was summoned on said panel, and was placed upon said grand jury by said L. M. Poe.

The following order was made by the Hon. L. M. Poe, as judge of the district court of Tulsa county, Okl.: 'The State of Oklahoma, to the Sheriff of Tulsa County--Greeting: You are hereby commanded to summon (4) four good and lawful men having the qualifications of jurors, from the body of Tulsa county, to be and appear before the Honorable L. M. Poe, judge of the district court of Tulsa county, state of Oklahoma, forthwith, to then and there serve as grand jurors in the above-entitled cause in said court. Of this writ you will make due return as the law directs, and hereof fail not. Witness my hand and seal of the said court at Tulsa, Oklahoma, this 5th day of June, 1911. By order of the Judge.'

Indorsed on the back thereof is the following: 'Sheriff's Return. Received this writ on the 5th day of June, 1911, and served the same by summoning: 1. Chas. Stout. 2. C. S. Olley. 3. Dean Hogan. 4. Chas. Vandiver--all good and lawful men from the body of the county. Wm. McCullogh, Sheriff, by L. L. Hall, Deputy.'

(9) It is further agreed that prior to and during the entire session of the grand jury, which found and presented this purported indictment, one Luther James was a duly appointed, qualified, and acting assistant county attorney of Tulsa county, Okl.; that during the deliberations of the grand jury that found and returned the purported indictment herein, one Phillip Kates was present in the grand jury room with said grand jury; that said Kates examined witnesses before said grand jury, including witness upon whose testimony the purported indictment herein was found, and advised the grand jurors with respect to their duties generally and specially; that said Kates, at the time he was rendering the services aforesaid, was claiming to act as assistant county attorney of Tulsa county, Okl.; that Pat Malloy, the county attorney of Tulsa county, Okl., had appointed, in writing, the said Kates an assistant county attorney of Tulsa county, Okl.; that the appointment of said Kates was made after the appointment of said James, and while the said James was an assistant county attorney of Tulsa county, Okl.; and that the said Luther James was, at all the times named or mentioned in this stipulation, an assistant county attorney of Tulsa county, Okl. It is further agreed that at all times set forth in this stipulation Tulsa county Okl., had a population of not more than 35,000 inhabitants.

Any notice that may be required by section 6738 of Snyder's Compiled Laws of Oklahoma, Edition of 1909, is hereby waived. [ Signed] Pat Malloy, County Attorney for Tulsa Co. [ Signed] Davidson & Williams, Attys. for Defendant."

Upon said date, and after the filing of the stipulation, the state, through Pat Malloy, as county attorney, and the defendant, through his counsel, Davidson & Williams, entered into a further stipulation as to additional facts upon which said motion should be heard, and said stipulation was dictated into the record, and is in words and figures, as...