Policky v. State

Day, J. Defendant was convicted of violating the liquor law of the state, as set forth in section 3252, Comp. St. 1922, and adjudged to pay a fine of $500 and to serve a term of 30 days in the county jail. He has brought the record of his conviction to this court for review. The principal point urged by the defendant for a reversal of the judgment is that the court erred in overruling the challenge to the special panel of jurors and in compelling him to go to trial before jurors selected and summoned by the sheriff. The contention is made that the sheriff was disqualified to select the special panel because he was the prosecuting witness. The record shows that the defendant was first tried before the court and a jury at the March, 1924, term of court. At the November, 1924, term of court the case was again tried to the court and jury and again resulted in a disagreement. Thereupon, on November 26, 1924, the court made an order discharging the regular panel and directed that the cause be tried at the then present term of court. The court further ordered the sheriff to summon without delay from the body of the county 18 good and lawful men possessing the qualifications of jurors to be and appear before the district court at 10 a. m. on November 28, 1924, to serve as petit jurors for the November, 1924, term of court. In obedience to this command, the sheriff selected and summoned 18 men to serve as petit jurors. When the case was called for trial, counsel for the defendant objected to trying the cause before the special panel for the reason that the jurors had been selected by the sheriff who was the principal, as well as the only, witness for the state as to the essential elements of the crime. The objection was over [860] ruled, the trial ordered »ío » proceed;• andfurors- ’out; of theoi18.e&lected by the sheriff ycere chosen to try .the cpse. ' ''The’rigfit'óf'the cóürt'to order a special'panel'óf jurors cannot be questioned. Section 9078, Comp. St. 1922, wriS'iri force át the time of trial. . This section tiassince been repealed by the, enactment of chapter 70; -Laws; 1925.. As it originally existed, the section, in so far as applicable to the present situation, provided, in substance, that whenever at ^ny‘£espéral',or speciartérm of, court; fór any'causé'there is po’panel' of ‘petit ’jutorS, ou;ttie,'p'áriér'íS incomplete, ttie court may' order "Jfó.sheriff,-'depu^,'sheriff, 'or;'coroner fó ,'dfeíaf .gtíod and lawful’men, hriying the gúatíficatjoins of j urpr&;' t'o' servé 'as a; petit; j dry.''' • feectibri é0¿3,.Cpñip'hSt., 19'22, fe asfollows'"'fe. " ' , o,‘“Every county clerk 'snail .serve and execute, processes of éyerfekind,. and perforin all other duties of ttie,sheriff, when, the'stiériff .shall be. a party to, the qaSe,'or Whenever affi^ davits'^shati. tiymade and' filed as'provided''in ttie rient suepeedirig sectionyandl‘n all'suctiháses'ije'stiáll 'ekerciSe the same ppvfer and proceed in' ttie' same' manner prescribed for the sheriff in the performance óf Similar duties.* '' Section 5014, .Comp. St.' 1922, provides, in' substance, that whenever any party, his agent, or attorney; shall make and file.an affidavit that he,believes .thé sheriff yfill not, by reásori óf paftiality, prejudice; consanguinity, ,;or . interest,, faithfully, perform his' duties in any spit cpmmeripe'd in, the court the'. clérk s'tiail direct''the'process to .'the cóprity clerk; who shall execute ttie' same in a like manner as the sheriff might of'ought,to have done. Tt will be observed' that; when a showing is. made conforining to the provisions of the 'Statute abóye, referred to, it is then mandatory that 'thé Clerk direct the county clerk to perform the duties of ttie stiériff. In the case at bar, the defendant had no, opportunity to make objections.' to ’the' sheriff selecting arid' sunambnirig ’the' special ppriel.until,'after.tie htid.'done.sd,:' Rethink; fipwevéf';; that the,.objections to the panel, riiade'by ttié'défendarit at the feme the case, was cálléti,’ Was' riot pnlytiniely, tint wris' sufficient to ctiallengé ttie attention of the Court to the fact; [861] that the sheriff under the circumstances shown was disqualified from selecting the jury. The court takes judicial notice \of its own records and in this case knew that the sheriff was the principal witness for the state and that a conviction of the defendant would turn upon a question of veracity between the sheriff and the defendant. It is essential to the fair and impartial administration of justice that a jury shall not be selected by an officer having an interest in the result of litigation to be tried before such jury. We think, under the facts disclosed by the record, the court erred in not sustaining the objection to the special panel. As the case must be tried again, we refrain from commenting on the' evidence. For the reasons given, the judgment of the district court is reversed and the cause remanded for further proceedings. Reversed. Note—See Juries, 35 C. J. sec. 240.