Opinion
No. 6,646.
Submitted January 28, 1930.
Decided January 28, 1930.
Prohibition — Jury Drawn from Old Jury List After Filing of New List — Challenge to Array — Jurisdiction.
Jury — Upon Filing of New Jury List, Old List Becomes Functus Officio. 1. Under section 8901, Revised Codes 1921, the persons selected by the jury commissioners in January of one year are, after the filing of the list containing their names with the clerk of the court, the "regular jurors" — the persons liable to be drawn for jury service until a new list is selected in January of the next succeeding year and filed, upon which filing the list of the preceding year becomes functus officio and thereafter a panel may no longer be drawn from such list.
Same — When Jury Panel or Array Complete. 2. A jury panel or array selected for the trial of cases in the district court under section 8902 et seq., Revised Codes 1921, is not complete until the jurors are accepted for service and their names are placed in the trial juror box; only then can it be said that the array is impaneled.
Same — Effect of Filing of New Jury List upon Persons Drawn from Old List and Impaneled. 3. Quaere: While a jury actually in service at the time the jury commissioners file the new list of persons liable for jury duty, is not affected thereby, what effect has the filing of the new list upon persons drawn and summoned from the old list and duly impaneled?
Same — Right of Trial by Jury Substantial One. 4. Trial by jury is a substantial right, and litigants at the commencement of a trial are entitled to a panel selected in substantial conformity with the requirements of the statute.
Same — Effect of Filing New Jury List on Verdicts Rendered by Jury Drawn from Old List, in Absence of Challenge to Array. 5. Where on January 6, 1930, the district court called its calendar and set cases for trial and on January 15 the jury commission filed the jury list for that year, verdicts rendered by juries chosen from the 1929 list after the filing of the new list, in the absence of challenge to the array, held unaffected by the ruling above. (Par. 1.)
Same — Jury Drawn from Old List After Filing of New — Effect on Jurisdiction of Court on Challenge to Array — Prohibition. 6. Held, on application for writ of prohibition, that where, fourteen days after the filing of a new jury list, at the commencement of a trial defendant interposed a challenge to the jury panel on the ground that the persons composing it, having been chosen under the old list, were improperly in attendance, the court was without jurisdiction to proceed, and erred in overruling the challenge.
Appeal from the District Court of the First Judicial District of the State of Montana in and for the County of Lewis and Clark, W.H. Poorman, J.
Mr. Roy E. Ayers, Mr. Sydney Sanner, Mr. J.L. Templeman and Mr. Fred J. Furman, for Relator; Messrs. Ayers and Sanner argued the cause orally.
Mr. C.A. Spaulding, Mr. T.B. Weir and Mr. John L. Slattery, for Respondents; Messrs. Spaulding and Weir argued the cause orally.
This is an application for a writ of prohibition to restrain the district court of Lewis and Clark county from proceeding with the trial of the cause hereinafter mentioned with a jury selected from an array or panel in attendance upon the court.
The facts, as disclosed by the pleadings or gleaned from argument, are that on January 6, 1930, the trial court called its calendar and assigned cases for trial. Among others was the cause wherein the National Bank of Montana is plaintiff and these relators are defendants, which was set for trial upon January 27, 1930. On the same day the court, proceeding in accordance with section 8902, Revised Codes 1921, made an order that a trial jury be drawn and summoned to attend on January 16, 1930.
On January 13, 1930, as directed by statute (sec. 8896), the jury commissioners of Lewis and Clark county met, made a list of the names of all persons qualified to serve as trial jurors (sec. 8897), and on January 15, delivered the list to the clerk of the district court, who filed it (sec. 8898) on that day.
When the cause of National Bank of Montana against the relators was called for trial on January 27, but before any jurors were called for the trial thereof, relators interposed a challenge to the panel or array, upon the ground that the persons composing the array were improperly and illegally in attendance upon the court, and that the court was without jurisdiction to proceed to select a jury over the objection of relators; the challenge specified that the array was not selected or drawn as prescribed by law (sec. 9343).
The persons selected by the jury commissioners, and whose names appear in the list filed with the clerk of the district court, "are known as regular jurors, and must serve for one year, and until other persons are selected and returned" (sec. 8901). In other words, the law contemplates that the persons selected by the jury commissioners in January of one year shall, after the filing of the list containing their names with the clerk of the court, be the "regular jurors" — the persons liable to be drawn for jury service — until other persons are selected and returned by the jury commissioners in January of the next succeeding year.
On January 16, the 1930 list having been duly filed with the clerk of the court, the 1929 jury list had become functus officio, and the court could no longer form a panel therefrom. The persons summoned to attend as jurors by the order made January 6, not having been impaneled prior to January 15, were, in the face of the objection made by relators, no more than bystanders in the courtroom.
Premising that there is on file with the clerk of the court a valid jury list, and that the names thereon have been written upon separate ballots and placed in jury-box No. 1 (sec. 8899), four steps are necessary to forming a panel or array of jurors for the trial cases in the district court: (1) The court must make the order provided for in section 8902; (2) the clerk in the presence of the court must draw the jurors required by the court's order from jury-box No. 1, and must certify the same and deliver the certificate to the sheriff for service (secs. 8903, 8904); (3) the sheriff must summon the persons whose names appear in the certificate to appear as the court order requires (secs. 8910, 8912); (4) at the opening of court on the day the jurors have been summoned to appear, the clerk must call the names of those summoned, and the court may then hear excuses. The names of those retained for service shall be then written upon separate ballots, which shall be placed in black capsules, and in the presence of the court deposited in a box, which must be kept sealed or locked until ordered by the court to be opened (sec. 8922). From this box, called the "trial juror box" (sec. 9334), the names of jurors for the trial of cases are drawn. Not until the jurors are accepted for service and their names are placed in the trial juror box is the array or panel complete; in other words, not until the fourth or final step is completed can it be said that the array is impaneled.
It was legally impossible to form an array or panel invulnerable to challenge from the 1929 list after the 1930 list was filed with the clerk. Otherwise, section 8901 is meaningless. Had the persons drawn and summoned from the 1929 list been impaneled before the 1930 list was filed a different situation might be presented; upon this point we do not express any opinion. But clearly a jury actually in service would not be affected by the filing of the new list. ( State ex rel. Clark v. District Court, 31 Mont. 428, 3 Ann. Cas. 841, 78 P. 769; Halsey v. Superior Court, 152 Cal. 71, 91 P. 987; Beach v. City of Seattle, 85 Wn. 379, 148 P. 39.)
Relators are entitled to a jury trial. We need not comment upon the insistence with which the people of this country maintain the right of trial by jury. Having this substantial right, relators at the commencement of the trial were entitled to a panel selected in substantial conformity with the requirements of the statute. ( State v. Landry, 29 Mont. 218, 74 P. 418; State ex rel. Root v. McHatton, 10 Mont. 370, 25 P. 1046; Dupont v. McAdow, 6 Mont. 226, 9 P. 925.)
It must not be taken from anything said in this opinion that any doubt is cast upon the validity of any verdict rendered by a jury chosen from the persons drawn and summoned pursuant to the court's order of January 6, 1930, where no challenge to the array was interposed.
Relators' challenge to the array should have been sustained.
Let a writ of prohibition issue, forever restraining the district court of Lewis and Clark county from choosing a jury for the trial of the cause of National Bank of Montana, Plaintiff, v. W.A. Clark, Jr., and the Montana Free Press, a Corporation, Defendants, from the array drawn and summoned pursuant to the order of the court made and entered on January 6, 1930.
ASSOCIATE JUSTICES MATTHEWS, GALEN, FORD and ANGSTMAN concur.