Appeal from the Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
J. M. McNamara and Carey Van Fleet, for Appellant.
Geo. B. Thatcher, Attorney-General; E. P. Carville, District Attorney, and Chas. A. Cantwell, Deputy District Attorney, for Respondent.
By the Court, Sanders, J.:
Sam Bachman, the appellant, was indicted, tried, and convicted in the district court of the Fourth judicial district of the State of Nevada, in and for the county of Elko, of the crime of grand larceny. From an order denying his motion for a new trial, and from the judgment pronounced against him, he appeals.
Prior to his indictment for the crime for which he was tried and convicted, the accused was in the custody of the sheriff of Elko County, and in default of bail was confined in the county jail to answer two indictments found against him by a prior grand jury. One of these indictments, upon motion of the accused, was by the order of the court directed to be resubmitted to another grand jury. The panel of the grand jury was then in attendance upon the court, but had not yet been selected. The accused remained in custody in default of bail. Before the grand jury was sworn to consider the case resubmitted, the accused interposed a challenge to the panel, upon the ground that it had been selected from twenty-three instead of twenty-four persons. The court overruled the challenge, the accused excepted, and then interposed a challenge to each individual member of the grand jury, upon the ground that a state of mind existed on the part of each juror with reference to the case and to the accused which would prevent them from acting impartially and without prejudice to the substantial right of the accused. (Rev. Laws, 7005, subd. 6.)
The court declined to consider the challenge, refused to try the same, and also refused to permit the accused to inquire of each juror as to his state of mind with reference to the case and to the accused. The court's ruling is as follows:
The court will at this time decline to consider the challenges. The record will show that you made the challenges and that the court declined to consider them for the reason that the defendant has not been held to answer, and the better practice is not to consider the challenges at this time, and as you are advised, all the points that could be raised at this time may be raised if necessary at the proper stage of the proceedings. I want you to have your record full in the matter and save your exception to the action of the court in refusing to consider the challenges at this time.
To this ruling the accused excepted. The grand jury returned three indictments against him, covering other and independent offenses than that of the accusation resubmitted, involving, however, the same subject-matter, to wit, grand larceny. Upon arrangement on one of said indictments the accused made his motion to quash and set aside the same. The motion was predicated upon the exceptions taken by the accused to the rulings of the court upon his challenge both to the panel and to the individual grand jurors:
1. First, that the grand jury was not a legal body, in that it was selected from twenty-three instead of twenty-four persons. This court has in several cases had occasion to rule upon this point adversely to the contention of appellant. (State v. Casey, 34 Nev. 154, 117 Pac. 5; State v. Williams, 31 Nev. 360, 102 Pac. 974; State v. Weber, 31 Nev. 390, 103 Pac. 411.)
2, 3. As to the second ground of the motion to quash and set aside the indictment, the question presented is more novel than difficult. The accused complains bitterly that the court's action in denying him the right to challenge the individual members of the jury before they were sworn, not only prejudiced him, but that he was deprived of his statutory and constitutional right.
It is argued that he was in custody and held to answer in the sense of our statute. (Rev. Laws, 7003.) There is no doubt but that the right of the accused to challenge the panel or any individual juror was a substantial right, and we are of the opinion that he was included in that class of persons who are held to answer. Where an indictment is set aside the statute provides:
If the court directs that the case be resubmitted, the defendant, if already in custody, must so remain unless he is admitted to bail; or if already admitted to bail, or money has been deposited instead thereof, the bail or money shall be answerable for the appearance of the defendant to answer a new indictment; and, unless a new indictment is found before the next grand jury of the district is discharged, the court must, ...