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McComb v. District Court

December 31, 1913

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.


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 the 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 trail. The motion was resisted upon the ground that the

[36 Nev. 417, Page 419]

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

[36 Nev. 417, Page 420]

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.)

1. 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

[36 Nev. 417, Page 421]

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.

2. 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 his 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 objections

[36 Nev. 417, Page 422]

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. Pl. & 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.

[36 Nev. 417, Page 423]

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

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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 ...


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