F. B. McCOMB, Petitioner, v. FOURTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF ELKO, and HON. E. J. L. TABER, Respondent
McComb v. Fourth Judicial District Court
NORCROSS, J.: I concur.
F. B. McCOMB, Petitioner, v. FOURTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF ELKO, and HON. E. J. L. TABER, Respondent.
[No. 2093]
F. B. McCOMB, Petitioner, v. FOURTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF ELKO, and HON. E. J. L. TABER, Respondent.
1. Grand Jury — Objections to Jurors — Waiver — Untimely Objection.
Under Rev. Laws, sec. 7005, permitting an individual grand juror to be challenged on the ground that he is an alien, and section 7010 providing that an accused can take advantage of any objection to the panel or to an individual grand juror “in no other mode than by challenge,” an accused waived his right to object that one of the jurors was a resident of another state by waiting until time for pleading to the indictment, more than two weeks after the impaneling of the grand jury, when opportunity was given his counsel to challenge, though accused was not then present.
2. Grand Jury — -Objections—Time of Making — Knowledge of Law.
One held to answer to the grand jury was bound to know the provisions of the code relating to the time challenges must be interposed to the grand jury.
3. Criminal Law — -Appeal—Harmless Error.
Since the state could have prosecuted the offense of horse stealing by information, special injury will not result to accused by trying him upon an indictment, though one of the grand jurors who found it was a nonresident.
4. Prohibition- — Purpose of Writ.
Under Rev. Laws, see. 5708, which provides that the writ of prohibition arrests the proceedings of any tribunal which are without or in excess of its jurisdiction, the writ will only issue where there is an exercise of functions without or in excess of the jurisdiction of the prohibited tribunal.
McCarran, J., dissenting.
Application for writ of prohibition by F. B. McComb against the Fourth Judicial District Court of the State of Nevada in and for the county of Elko and Hon. E. J. L. Taber, Judge.
Application denied.
The facts sufficiently appear in the opinion.
R. C. Van Fleet, A. J. Weber, and James Dysart, for Petitioner.
Geo. B. Thatcher, Attorney-General, E. P. Carville, District Attorney of Elko County, Curler & Gedney, and Henderson & Caine, for Respondents.
By the Court,
Talbot, C. J.:
This is an application for a writ of prohibition to enjoin the Fourth judicial district court, Elko County, and the Honorable E. J. L. Taber, presiding judge thereof, from trying F. B. McComb because one of the grand jurors was a resident of the State of Wyoming at the time of the finding of the indictment against him for grand larceny.
Under a criminal complaint charging horse stealing, and after hearing and taking of testimony continuing from the 26th to the 30th day of August, 1913, Phil S. Triplett, justice of the peace for Wells township, on the 24th day of September ordered the applicant held to answer and admitted to bail. On September 23, 1913, a grand jury was drawn, returnable October 8. Upon the impaneling of the grand jury on that day, in the absence of McComb and in the presence of his attorney, the court asked if there were any challenges to the panel or to any individual juror, and, no challenge being interposed, the accused persons who were in the custody of the sheriff and who had been brought into court were remanded to jail. On the following day the grand jury returned an indictment for grand larceny against the applicant and the arraignment was set for October 10.
At the time of the arraignment a copy of the indictment was handed to him, and he was asked whether he pleaded guilty or not guilty, and on motion of his attorney the court ordered that he be given until October 16 in which to plead to the indictment. On that day he presented affidavits indicating that one of the members of the grand jury that found the indictment was a state senator in Wyoming, and that, although he had been in Nevada much of the time for the past two years, he had declined to register here as an elector and retained his residence in Wyoming. Thereupon the defendant moved the court to set aside the indictment because it was not found by a grand jury of seventeen men having the qualifications of grand jurors under the statute of this state, and because the court was without jurisdiction to proceed with the trial. The motion was resisted upon the ground that the reasons advanced for setting aside the indictment had been waived by the defendant.
The constitution gives the district court jurisdiction over all felonies. Horse stealing having been made grand larceny by an act of the legislature, the trial of persons accused of that offense comes within the jurisdiction of the district court and no other. Persons charged with the commission of felonies are entitled to be tried by an indictment found by a grand jury consisting of duly qualified electors resident in the county, who are citizens of the United States and have been in the state six months, except that prosecutions may be had upon information under the late amendment to our constitution, which now conforms to the provisions in other states for prosecution by information.
Is this right of the accused to be indicted by a legal grand jury, as well as other constitutional rights, such as that of having counsel, being present at the trial, being confronted by the witnesses, and having witnesses produced in his behalf, one so vital to the jurisdiction of the court that it may not be waived or regulated by act of the-legislature? It may be conceded- that neither by statute nor by judicial decision,can an accused person be deprived of his right to be indicted by a regularly constituted grand jury, unless charged by information, before being tried for a felony: But may not the legislature, and in the absence of statutory regulation the courts, require that challenges to a grand jury be seasonably made, so that undue delay and unnecessary expense may be avoided in the administration of justice?
If the constitutional right of an accused person to be indicted by a grand jury composed of the requisite number of qualified resident electors is a jurisdictional" one which he cannot waive, logically he might raise the objection any time after conviction and appeal and before full service of sentence. The rights of persons who are so unfortunate as to be charged with crime should be carefully guarded, but not to the extent of allowing them to cause unnecessary delay and useless expense. They cannot be deprived of their constitutional rights by the legislature or the courts, but should be limited to a reasonable time in which to interpose challenges or make objections.
It is not strange that the decisions relating to the time at which an objection may be made or a challenge interposed or waived are not uniform in various jurisdictions without legislative enactment. Some have held that the right of challenge is waived by pleading to the indictment or by going to trial, and in rare instances that the objection to the grand jury may be made after trial and upon appeal. If in the absence of statutory regulation the courts may determine the time within which the challenge must be made, the matter may be regulated by statute, and the legislature may provide that, if the challenge is not interposed within a reasonable time, it shall be waived, as has been done in this state, so long as the accused is not deprived of a fair opportunity to interpose a challenge. To allow the objection to be made after trial might necessitate the calling of a new grand jury and trial jury and the recalling of the witnesses, officers, and persons engaged in the trial. To allow the objection to be made after the indictment, as is sought to be done in this case, may necessitate the calling of a new grand jury. This is necessary only in cases where the accused has been indicted without being previously held to answer and where he could be given no opportunity to challenge the grand jury until after the indictment was returned, and the code has provided accordingly. (Rev. Laws, 7090.)
There is no good reason why an accused person should be allowed to wait until after an appeal or after a trial and the chance of securing a favorable verdict to challenge the grand jury, nor why the legislature may not provide that such challenges must be exercised earlier if a reasonable opportunity is given to interpose his objection to being deprived of his constitutional right or of being put on trial unless indicted by a legal grand jury. No one has any vested right in the common law, except in so far as it is carried into the constitution. By legislative enactment it is in force in this state when not in conflict with the constitution or statutes. As the decisions constituting the common law regarding the time and method for taking objections to grand juries are conflicting, our legislature has wisely provided that a person who has been held to answer by a committing magistrate may by challenge interpose his objection to the grand jury at the time it is impaneled, and in no other mode. (Rev. Laws, 7004, 7005, 7010.)
No good reason is apparent for holding that this statute may not control such a matter of practice. This is evidently intended to give the accused person an opportunity, with fair diligence, to timely assert his constitutional rights and prevents the delay in the administration of justice and the useless expense which might be incurred if the challenges were allowed to be interposed after trial or after the grand jury has been impaneled, acted upon the case, and returned an indictment. The grand jury was drawn two weeks in advance, and it is not shown that with reasonable diligence or effort the accused could not have ascertained regarding the disqualification of grand jurors and interposed his challenges at the proper time. His absence while on bail when the grand jury was impaneled is no fault of the state.
He was bound to know the specific provisions of the code, that challenges may be interposed at the time the grand jury is impaneled, and that objections to the grand jury or a member thereof can be made in no other mode. He was required to be present at all the proceedings in which he was interested, and he was as much bound to appear and interpose the challenges, or have Lis attorney do so, at the time the court asked if any were to be made, as persons who were brought into court by the sheriff for the purpose of giving them an opportunity to interpose challenges. At section 112, vol. 1, Bishop's New Criminal Procedure (2d ed.), that reliable author states: "Since accused persons may waive constitutional rights, they may doubtless, under some circumstances, waive the protection of this provision. They cannot when the effect would be to create a jurisdiction which the court did not otherwise possess, as to try one wholly without accusation. But formal obj ections may by statute be required to be taken at an early stage of the proceeding, in the absence whereof they will be treated as waived."
At section 996, 997, Bishop's New Criminal Law, it is said: "It is a doctrine to which there are few exceptions that a party in a cause may waive any right which the law has given him, even a constitutional one. The courts will refuse to hear objections to the persons composing the grand jury, or to the manner in which it is impaneled, after the case has been tried by the petit jury, or, indeed, after proceedings earlier than the trial. "
In volume 10, Ency. PI. & Pr., at pages 355, 404, 406, it is said: "The .incompetency of one grand juror is sufficient to render the body illegal and findings by it void. This rule is subject, however, to the requirements in the various states in respect of the time and manner of raising such an objection. But the manner of raising various objections is not the same in all jurisdictions, and the extent of the foregoing rule as to waiver is more or less dependent upon local practice.. On the other hand, when.the defendant is held to answer, he is entitled to challenge, and his right cannot be denied-him unless he waives it; but the challenge being, under such circumstances, his only remedy in many states, he must take advantage of his privilege in proper time or .his right will be waived, even if, at the time of his privilege, he did not know of the existence of the objections."
It is said in 24 Cyc.. p. - 129, that " alienage is a disqualification .to act as a juror and was such at common law, and one which the parties may waive."
Bierly, in his work on Juries and Jury Trials, at page 85, states that after arraignment and plea it is too late to challenge, indicating that in his opinion such objection does not go to the jurisdiction so as to vitiate subsequent proceedings. The conclusion is that any error in this regard cannot be corrected by special writ.
In Commonwealth v. Freeman, 166 Pa. 332, 31 Atl. 115, it was held that a motion to quash the panel after four jurymen had been selected and' sworn came too late. -
In Commonwealth v. Penrose, 27 Pa. Super. Ct. 111, 112, it was said in the opinion: "The disqualification of the juror was a purely legal one which did not at all tend to impeach his capacity, integrity, or impartiality. It would have been disclosed, if he had been interrogated at the time he was sworn, but the defendant voluntarily omitted to avail himself of the means at his hand for informing himself and the court upon the subject. He preferred, perhaps, to hold them in reserve to be used in the event of an adverse verdict, as he had a perfect right to do, if the position of his counsel is correct. We think, however, that their position is not tenable. In Hollingsworth v. Duane, 4 Dall. 353, 1 L. Ed. 864, as the report of the case goes, 'the court after a long advisement upon the subject seemed to think that alienage might have been a cause of challenge before the juror was sworn; but upon an extensive review of the authorities they decided that advantage could not be taken of it after verdict. ' In Commonwealth v. Thompson, 4 Phil. 215, it was held that, although the alienage of a juror is good cause of challenge, the court will not set aside the verdict of the jury in a criminal case on that ground, where the trial has been allowed to proceed without any objection having been made to the juror's disqualification, even where there is evidence, from the affidavits of the juror and the prisoner, that the fact of alienage was not disclosed by the one, nor known to the other, before the trial. This decision is not binding upon us, it is true. We cite the case because the reasoning of Judge Allison in support of the above conclusion commends itself to our judgment as a sound and convincing exposition of the law upon the subject. The decisions of the courts of the other states upon the subject are not harmonious, but the weight of authority seems to be in favor of the conclusion we have reached, namely, that, under the circumstances to which we have alluded, the court below wisely exercised the. discretion committed to it in holding the alienage of the juror to be insufficient reason for setting aside the verdict. A collection of many of the decisions will be found in State v. Pickett, 103 Iowa, 714, 73 N. W. 346, 39 L. R. A. 302."
In Territory v. Harding, 6 Mont. 323, 12 Pac. 750, the Montana statute provided for the challenging of the grand jury before it was sworn, and that a failure to make the challenge should be deemed a waiver of the right to object, and it was held that defendant had waived his right of challenge and could not afterwards object that one of the grand jurors was not a citizen of the United States, although he did not learn that fact until after the indictment was found and returned into court.
In Territory v. Hart, 7 Mont. 58, 14 Pac. 774, and 7 Mont. 496, 17 Pac. 720, the court said: "The juror Doniothy, who was challenged on account of alienage, was permitted by the defendant to sit in this case, through a failure to exercise his right of peremptory challenge; the accused having two peremptory challenges unexhausted when he accepted the jury. He thereby waived the objection of alienage, if it were otherwise a good objection, and there was no error of which he could properly complain. It has been repeatedly decided that alienage is a disqualification of a juror which the defendant may waive either expressly or by failure to object at the proper time. (Territory v. Hart, 7 Mont. 42, 14 Pac. 774.)" This position was held by the court after thorough investigation and long consideration of the authorities.
Following provisions relating to challenges, the code provides that, if the challenge to the panel is allowed, the grand jury are prohibited from inquiring into the charge against the defendant by whom the challenge is interposed, and that, if a challenge to an individual grand juror is allowed, he cannot be present or take part in the consideration of the charge against the defendant who interposed the challenge. (Rev. Laws, 7008, 7009.)
Section 7010, which provides that "a person held to answer for a public offense can take advantage of any objection to the panel or to an individual grand juror in no other mode than by challenge," is similar to the California statute. (Kerr's Cyc. Pen. Code, sec. 901.)
In People v. Arnold, 15 Cal. 479, the court said: "The defendant was held to answer before the finding of the bill. He was then bound to make his objection to the grand jury on their being impaneled. It is argued that the defendant cannot, by the constitution, be tried unless and until indicted by a grand jury; and that this means a grand jury constituted according to law; and that a bill by a grand jury not so constituted is a nullity. But the answer is that the legislature may constitutionally prescribe rules of practice in criminal or civil cases, and that among these is the provision as to the time and mode of excepting to irregularities of proceeding; and it is ordained that exception to the grand jury shall be made at a particular time. In many of the states, exceptions to particular jurors or to the panel are required to be •made by plea in abatement and cannot be heard unless so made; yet the same constitutional provisions in substance obtain in those states, and the same argument would hold that this practice, long acquiesced in and upheld without objection by the courts, is unconstitutional."
In State v. Romero, 18 Cal. 94, it is said in the opinion: " If the prisoner were refused the privilege of challenging the grand jury in and by the court of sessions, the indictment is insufficient and worthless; it is not, in other words, a legal indictment, because not found by a body competent to act on the case; but, to have this effect, the prisoner must have applied for leave or requested permission to appear and challenge the jury. It was not the duty of the court of sessions to bring him into court for the purpose of exercising this privilege. It is the prisoner's business to know when the court meets and, if he desires to challenge the jury, to apply, if in custody, to the court, to be brought into court for that purpose; and, if he fails to do this, he waives his privilege of excepting to the panel or any member. "
However, the better practice prevails in this state of having persons held to answer brought into court and given an opportunity to challenge the grand jury at the time it is impaneled.
In People v. Henderson, 28 Cal. 469, the defendant, under indictment for murder, moved' to set aside the indictment on the ground that one of the grand jurors was not a taxpayer and one of them was not a citizen at the time the grand jury was summoned, although he was naturalized before it was impaneled. The court said: " Conceding the point to be otherwise good, under these circumstances the objection came too late, when taken for the first time after indictment found. The objection should have been made by challenge at the time of the impaneling of the jury. (Crim. Prac. Act, secs. 183, 189, 297; People v. Colmere, 23 Cal. 632; People v. Arnold, 15 Cal. 479; People v. Chung Lit, 17 Cal. 322; People v. Romero, 18 Cal. 93.)"
In United States v. Gale, 109 U. S. 67, 69, 3 Sup. Ct. 3, 4, 27 L. Ed. 857, it is said in the opinion: "We have no inexorable statute making the-whole proceedings void for any irregularities. It seems to be requisite that all ordinary objections based upon the disqualification of particular jurors, or upon informalities in summoning or impaneling the jury, where no statute makes proceedings utterly void, should be taken in limine, either by challenge, by motion to quash, or by plea in abatement. Neglecting to do this, the defendant should be deemed to have waived the irregularity. It would be trifling with justice and would render criminal proceedings a farce, if such objections could be taken after verdict, even though the irregularity should appear in the record of the proceedings."
In Foreman v. Hunter, 59 Iowa, 550, 13 N. W. 659, it was held that a verdict rendered by a jury, two of whose members were aliens, was erroneous but not void; that the objection might be considered on appeal, but could not be taken by writ of habeas corpus.
In Kaizo v. Henry, High Sheriff of Hawaii, 211 U. S. 148, 29 Sup. Ct. 42, 53 L. Ed. 125, it was said that the objection that eight of the grand jurors were not citizens of the United States could not be taken by writ of habeas corpus but by writ of error, which is equivalent to a writ of appeal in the state courts. The court said: "Disqualifications of grand jurors do not destroy the jurisdiction of the court in which an indictment is returned, if the court has jurisdiction of the cause and of the person, as the trial court had in this case. (Ex Parte Harding, 120 U. S. 782, 7 Sup. Ct. 780, 30 L. Ed. 824; In re Wood, 140 U. S. 278, 11 Sup. Ct. 738, 35 L. Ed. 50; In re Wilson, 140 U. S. 575, 11 Sup. Ct. 870, 35 L. Ed. 513.) See Matter of Moran, 203 U. S. 96, 104 27 Sup. Ct. 25, 51 L. Ed. 105. The objection may be waived, if it is not made at all or delayed too long. This is but another form of saying that the indictment is a sufficient foundation for the jurisdiction of the court in which it is returned, if jurisdiction otherwise exists. That court has the authority to decide all questions concerning the constitution, organization, and qualification of the grand jury, and if there are errors in dealing with these questions, like all other errors of law committed in the course of the proceedings, they can only be corrected by writ of error."
In State v. Larkin, 11 Nev. 325, Chief Justice Hawley, speaking for this court, said: " From these facts it appears that at the time the grand jury was impaneled defendant was not held to answer before it for any offense. He, however, had the privilege, under the ruling of the court, as well as by virtue of the provisions of section 276 of the criminal practice act, to move to set aside the indictment ' on any ground which would have been good ground of challenge either to the panel or any individual grand juror. ' Having refused to exercise this privilege, he is not in a position to complain of the ruling of the court. (People v. Romero, 18 Cal. 93.) "
This is equivalent to saying that the accused is required to interpose his objection to the grand jury at the time provided by the statute, which in that' case was before pleading to the indictment because he had not been held to answer, and which in this case is at the impanelment of the grand jury because petitioner had been held to answer.
As the state is disposed to prosecute and could have proceeded by information, it is not apparent that special injury will result to the accused by allowing the trial to proceed upon the indictment. Differently from a foreigner who might be unfamiliar with our language or methods, or without sympathy for our institutions, the fact that the member of the grand jury to whom objection is so seriously made is a senator in a sister state leads to the conclusion that he is a citizen of the United States and of more than ordinary ability and understanding of our laws. It appears that he has been living and following industrial pursuits in this state for the most of the time during the last year or two, and that his only disqualification for being a good grand juror is his intention to retain his residence in Wyoming. Men sometimes maintain residences in different places, although allowed only one legal residence as an elector.
In order to sustain the contention of the petitioner, we would have to hold contrarily, not only to numerous decisions which are in conflict with others, but to the opinions of text-writers as generally expressed, and we would have to set aside the plain provisions of our code. The district judge reviewed a number of authorities and properly held that the accused had waived his right to challenge the grand jury.
The writ of prohibition will issue only when there is an exercise of functions without or in excess of jurisdiction. (Rev. Laws, 5708; Knight v. District Court, 32 Nev. 346, Ann. Cas. 1912D, 143; Turner v. Langan, District Judge, 29 Nev. 281.)
The application for the writ is denied.
NORCROSS, J.: I concur.