State v. Gurlagh

Beck, J. 1. Gbaud jury; p!nei“iesin how fined. — I. A motion by defendant to set aside the indictment was overruled. This decision is now ma<^e ground of complaint. The facts involved in this point are these: On the first day of the term twelve grand jurors [142] appeared ; having been summoned under the. provision of chapter 42, Acts Twenty-Pirst General Assembly, amending and changing the section of the Code relating to grand jurors, their number, etc. The ofíense charged in the indictment was committed after that statute went into- effect. Prom the jurors appearing, the clerk selected seven by lot. Prior to impaneling the grand jury, one of the jurors was excused. The other persons not drawn had not been discharged. The sheriff, being so directed by the court, selected one of the jurors not drawn to take the place of the juror excused. The grand jury, constituted of the six jurors not discharged and the one selected by the sheriff, was then impaneled and sworn. The defendant insists that the grand jury was not legally constituted, for the reason that the jury was filled after one had been excused, by the selection of the sheriff, and not by drawing from the list of jurors. Code, section 4256, as amended by chapter 42, Acts Twenty-Pirst General Assembly, is in the following-language : “Ata term of court at which grand jurors are required to appear, the panel shall be called, and the names of the grand jurors appearing shall be entered upon the record. Prom the number of jurors thus summoned and appearing the clerk shall select, by lot, the required number. If more grand jurors have appeared than, the number required to fill the panel, the remaining number shall be discharged for the term. If from any cause, either then or afterwards, the number of the panel be reduced to a less number than required, the court may order the sheriff of the county to summon a sufficient number of qualified persons to complete the panel.” The last sentence directs the sheriff, upon the. order of the court, to fill the panel when the number thereof is reduced for any cause at the time of the drawing of the jurors or afterwards. This is a positive and plain direction, which we think will admit of no other interpretation. Some doubt on this point possibly may arise, in view of the fact that the-word “panel” in the first sentence of the section is applied to the whole [143] number of jurors summoned. But in the other sentences the word is used twice, and is applied to the jurors selected by the clerk by lot. .The word, being applied to both, must be held to mean the one or the other, according to the connection in which it is used. It is applied in the last two sentences to the selected jurors, and, under the plain language of the section, a vacancy in their number, or the place of one excused, is to be filled by the sheriff. We think the district court rightly overruled the motion to set aside the indictment. 2. liquor nuiindfctment: property”11 of variance. II. The indictment alleges that the nuisance was kept in a three-story brick building. • The defendant insists that the proof varies from this allegaii°n, in that it shows the nuisance was maintained in a one-story addition to a three-story building, and that defendant’s mother occupied the three-story part of the building. But the evidence shows that the room in which the liquors were ké’pt has a door into the other part of the house occupied by the mother, and is used in common by both as a kitchen. The three-story part or the first floor is used by the mother as a cigar-stand and restaurant. It appears to us that the evidence supports the conclusion that the three-story part of the house, as well as thfe one-story part, was used in maintaining the nuisance ; inasmuch as customers passed through the three-story part to reach the little room in which the liquors were kept. No other questions arise in the case. The judgment of the district court is Aegtjrmed.