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(- Nev, -, 17. Pac. 706.) by prohibition is asked from this the members of the grand jury relacourt. In this respect it is asserted tive to the case. that J. H. Cazier, the foreman of

He was interrogated, and anthe grand jury which returned the

swered thus : indictment, was disqualified under clause 6 of $ 155 of the Criminal

Q. From what you had read and

from what you had heard about this Practice Act (Rev. Laws, 7005). This section provides :

case, had you formed or expressed

any opinion concerning the guilt or "A challenge to an individual

innocence of Mr. Parus? grand juror may be interposed for

A. Why, I don't know that I have; one or more of the following causes

no. I have heard it spoken of and only:

regretted, and I have heard people "1. That he is a minor;

say, and I don't know but what I “2. That he is an alien;

have myself expressed regret that "3. That he is insane;

such a thing would happen, and that "4. That he is a prosecutor upon

is about all. a charge against the defendant;

Q. You hadn't any opinion, prior "5. That he is a witness on the

to the time that you took up the part of the prosecution, and has

consideration of this case, as to

whether a crime had been commitbeen served with process or bound by an undertaking as such;

ted or not, and as to whether Mr. "6. That a state of mind exists

Parus had committed such a crime?

A. Well, I believe from what I on his part in reference to the case,

had heard that I did consider a or to either party, which will prevent him from acting impartially

crime had been committed; I believe

that was theand without prejudice to the substantial rights of the party chal

Q. And that Mr. Parus was the lenging; but no person shall be dis party who had committed it?

A. Yes; that is, through just qualified as a grand juror by reason

what I had heard; I felt like a crime of having formed or having ex

had been committed; yes, I admit it. pressed an opinion upon the matter

Q. And that was prior to the time or cause to be submitted to such

that you took up the consideration jury, founded upon public rumor, of this case as a grand juror? statements in public journals, or

A. Well, yes, I might say that, common notoriety; provided, it sat

but I hadn't paid very much attenisfactorily appears to the court up- tion to it, not knowing the party; on his declaration, under oath, or but I think, perhaps, I was imotherwise, that he will, notwith pressed with what I had heard; that standing such an opinion, act im- a crime had been committed; yes, partially and fairly upon the mat- sir. ters to be submitted to him."

Q. Well now, that opinion that Attached to the affidavit of peti- you had, was that a fixed, settled tioner's counsel there are set forth opinion, one that would require evithe interrogatories propounded by

dence to remove? petitioner and by the state to the

A. Well, I don't know that it was;

I don't know that it was. If the evijuryman J. H. Cazier. This exam

dence was conclusive that there ination took place after the finding of the indictment.

hadn't been a crime, why, I would It is disclosed

decide it by the evidence. that the juryman testified that he

Q. But you were in that state of had seen an account of a case of

mind, were you not, Mr. Cazier, at State of Nevada v. Arne W. Parus, that particular time, which would as the same was published in the require evidence to have changed newspapers; that he had heard the that opinion? case talked of, but not in detail; that A. Well, I don't know but what it he had not talked with any of would, yes. I felt like a crime had

been committed, and of course we, man, and I don't have any distinct after the case was submitted and recollection of being introduced to the particulars were known, why, I Mr. Winter. felt like we was justified in find- Q. But at that particular time ing

you did have such information reQ. Now, as I understand it, at that specting this matter that you were time and before the witnesses were satisfied in your own mind that Mr. called and sworn in that case before Parus was guilty of the offense the grand jury, as I understand it, charged ? your mind was in that condition A. Yes; I felt like he was guilty that it would have required evidence of the offense charged, because or to remove the opinion that you had he was, from what I had heardas to the guilt of Mr. Parus.

On cross-examination, the juror, A. That might possibly have been

Cazier, described his state of mind the case.

thus: Q. Well, now, wasn't it the case ?

Q. As I understand, Mr. Cazier, A. I hadn't thought very much

the only idea you had of this case, about it, as I tell you, but I felt like

before it was presented to you as a a crime had been committed; yes,

grand juror, was gleaned from I admit that, some crime.

newspaper reports and a little casQ. And it would have at that

ual talk, is that right? time, before you heard a word of

A. Yes, I-that was what I based testimony, it would have required

my belief on, of course; that is the

; evidence to have removed that opin- only thing I could; I didn't have ion, wouldn't it?

anything else. A. Possibly, yes.

Q. Did you talk, at any time prior Q. Well, wouldn't it?

to the time this matter was presentA. Well, I hadn't thought about

ed to you in the grand jury room, it that way, Judge; I don't know; I

to anyone who was a witness in any hadn't thought about it. I thought

way in this case? a crime had been committed, of

A. No, I think not. I don't think course; from what I had heard and

I ever met any of the witnesses, not what I had seen in the papers, I that I recall now. thought a crime had been commit

Q. What you heard, then, was in ted, but I hadn't thought about the the form of this public rumor going evidence, and, in fact, I didn't know

around, was it? whether it would be submitted to

A. Yes. this jury or not. I hadn't thought

Q. And the rest of it was from about it much prior to the time it

the articles that were published in came before the jury.

the local papers here? Q. Well now, Mr. Cazier, if you

A. Yes. I picked up the local were to have been—if it were a

paper in the window and noticed it. question of your being chosen as a

and then I, after coming up here, I trial juror and you were being ex- heard it mentioned, I couldn't say amined upon your voir dire, and you

by whom either, now; I have heard had been asked if you felt that you

it mentioned though; that is about would have been a-would be an im

all. I don't know that I have dispartial juror, wouldn't your answer cussed it with anybody, any more have been, “No, I don't think I would than just to mention the fact that make an impartial juror in this the crime had been committed, or case ?"

the supposition was that a crime had A. No, Judge; I couldn't say that. been committed. If I had been examined as a trial Q. And from that talk that you juror I believe I would have given heard and from those newspaper rethe defendant a fair and impartial ports, you formed a certain imprestrial. That is the way I felt; I had sion, which was based upon the no prejudice; I didn't know the facts as related in the newspapers ?

Indictment

effect.

(- Nev. —, 17! Pac. 706.) A. Well, yes-well, I don't know made plain that it is not every that I based any opinion.

opinion or impression formed that Q. Now, was that impression that will preclude a juror from acting in you formed in the nature of an opin- a case. The opinion which will dision as to the guilt or innocence of qualify must be one based on someArne Parus of the crime of murder? thing more substantial and tangible

A. Well, I knew that he was the than mere rumor, or the report of accused; that is all I knew, through current publications. It must be the paper, that he was the accused, more deep-seated and substantial and I hadn't paid much attention. than a vague general opinion of the I don't know anything about the de- existence of a public offense. tails or the circumstances surround- A third ground is urged here why ing the killing; of course, I couldn't this writ should issue. In this redetermine whether it was murder, spect it is contended that the accuor justifiable homicide, or what you satory body which brought in the would call it; I felt like a crime had indictment against petitioner was been committed.

not selected by the officers preQ. And yet you feel that prior to scribed by law, but was selected by the time that you heard the evidence the district judge acting alone. in the grand jury room you would From the record as it is before us, have been fully qualified as a trial it appears that the members of the juror in the case ?

grand jury were selected by the A. Yes; I felt like I could have district judge and one member of given the defendant a fair and im- the board of county commissioners. partial trial. I had no fixed convic- From all that we tions as to his guilt or innocence, may ascertain from improperly because I didn't know the circum- the record, there ap

selected jurystances.

pears to have been The juryman was interrogated at

a substantial compliance with the greater length, and was cross-inter

statutory requirements in this rerogated, but we find nothing in his spect. Section 4931, Rev. Laws. It examination which would indicate

is not every technical defect in a that at the time at which he became proceeding of this character that a member of the grand jury, and

will vitiate the acts of the officers in prior to the time at which that body drawing the grand jury. Where in undertook the investigation of the

drawing, summoning, and impanelcase, he was possessed of a state of

ing the jury there is a substantial mind which would prevent him from

compliance with the statute on the acting impartially, part of the designated officers, and -effect of and without prej

where this compliance indicates opinion formed. udice to the sub

freedom from bias or prejudice, the stantial rights of petitioner. There

courts are not inclined to set aside

indictments found after due deis nothing in the record from which we might infer that the impression

liberation on the part of the grand or opinion held by the grand juror jury, where everything indicates was other than one which, if formed

fair and impartial consideration. at all, was based on public rumor

The whole contention of petitioner

relative to this phase is met squareand what he had read in the current

ly by the decision of this court in newspapers. The record, as it is before us, fails to bring the juror 275, 30 Pac. 891.

the case of State v. Collyer, 17 Nev. within the rule, which, under our

The writ prayed for should be de. statute, would preclude him from nied, and the proceedings dismissed. serving on the grand jury prior to

It is so ordered. the investigation of the case of petitioner. This is especially true in

Sanders, J., concurs. view of the language of subdivision Coleman, J., dissenting: 6 of § 7005 quoted, by which it is I regret that I am unable to reach

the conclusion set forth in the ma- the common law, and with the fact jority opinion as to the qualification in view that its rules are still left of women to do grand jury duty, in force. By this we do not mean for I feel that their service upon our that the common law is to control grand juries would greatly tend to the Constitution, or that the latter produce a more wholesome moral at- is to be warped and perverted in its mosphere within the various coun- meaning in order that no inroads, ties of the state; but sentiment must or as few as possible, may be made not be permitted to enter into the in the system of common-law rules, consideration of those matters. but only that for definitions we are

I shall not elaborate in the presen- to draw from that great fountain, tation of my views. In the adoption and that in judging what it means, of our Constitution, while it is pro- we are to keep in mind that it is not vided by $ 6, article 1, that "no per- the beginning of law for the state, son shall be tried for a capital or but that it assumes the existence of other infamous crime

ex- a well-understood system which is cept on presentment or indictment still to remain in force and be adof a grand jury, " the Con- ministered, but under such limitastitution nowhere says, in express tions and restrictions as that inwords, who shall comprise the grand strument imposes.” jury. It is contended by petitioner, In the case of Carpenter v. State, and conceded by respondents, that 4 How. (Miss.) 163, 34 Am. Dec. at common law only men were qual- 116, the court says: "It is a general ified to sit on a grand jury, and that rule that, where terms used in the this rule obtained up to the time of common law are contained in a statthe adoption of our Constitution. ute or the Constitution, without an It must be presumed that the consti- explanation of the sense in which tutional convention, in providing they are there employed, [they]

[] that indictments might be found by should receive that construction a grand jury, contemplated a grand which has been affixed to them by jury composed of members possess- the former. To ascertain then in ing the qualifications required of what the right of trial by jury congrand juries at common law. The sists, we must necessarily recur to general rule is laid down in Cyc. (8 the provisions of the common law Cyc. 740) as follows: "Constitutions defining the qualifications, and asthemselves, being instruments in certaining the number of which the the nature of re-enactments of an jury shall consist; as the standard acknowledged system of principles to which, doubtless, the framers of coeval with, and a part of, the com- our Constitution referred. At common law itself, and subject to judi- mon law the number of the jury, for cial interpretation from their incep- the trial of all issues involving the tion, it necessarily follows that the personal rights and liberties of the definitions of terms used in consti- subject, could never be less than tutions and statutes are to a great

twelve, though there are some precextent to be found in the common edents which show that a verdict law, and in the common usage and by a greater number would not, on understanding of those terms, ac- that account, be void. The legislation cording to the institutions of the of the state has left this particular country in which they originated topic untouched. It has in no inand were brought into use in the ad- stance prescribed the number of the ministration of government."

jury, if it were at all important for Mr. Cooley, in his work on Con- it to have done so; but in all cases stitutional Limitations, 6th ed. p. where the term 'jury' is used in our 74, says: “It is also a very reason- statutes, it is regarded as one of able rule that a state constitution fixed and determined meaning; asshall be understood and construed certained by the paramount law." in the light and by the assistance of In at least two cases this court

(- Nev. —, 174 Pac. 706.) has determined that such is the rule tute the grand jury, the court conin this state, and while the opinions sidered the question at some length, are instructive, it is not deemed but a brief quotation will suffice as necessary to comment upon them follows: "At the time of the adopor to quote from them at length. In tion of the Constitution of Nevada, the case of State v. McClear, 11 wherein it is declared, 'No person Nev. 39, Hawley, Ch. J., considers shall be tried for a capital or other at length the constitutionality of an infamous offense

except act in which the court discussed a on presentment or indictment of a question similar to the one here in- grand jury' (art. 1, $ 8), the provivolved, and, to my mind, used lan- sions of the General

General Statutes guage decisive of this matter. Said (88 3795, 4106, 4107) which are dethe court: “It was claimed upon the claratory of the common law were in oral argument that the constitutions force, being enacted by the terrial provision only requires a jury of torial legislature of 1861. We, twelve men. That the number is all therefore, conclude that, when the that is essential. We must confess people of this state adopted this conthat this appears to have been the stitutional provision, they had in view entertained by the legislature view a 'grand jury' as it existed at in the passage of the amended act. common law and under the statutes If this be true, it would be within at the time of the adoption of the the power of the legislature to take Constitution. It is so held by this away all the other qualifications court with reference to the right of without violating any of the provi. trial by jury in construing the third sions of the Constitution, and the section of the same article of the right of trial by jury-so long Constitution. State v. McClear, 11 esteemed as the. palladium of our Nev. 39. The reasoning in that liberties—if such power was exer- case is applicable to the question at cised, would soon dwindle into in- bar." (Italics ours.) significance and become a byword If the law quoted is sound, as I and reproach upon our entire judi- think it is, then our constitutional cial system.

We think that

convention provided for a grand the term 'jury,' as it is used in the jury of men as clearly as though the Constitution, means twelve compe- Constitution itself had used the tent men who are free from all the word “men." The word “men” is ties of consanguinity and all other written into the Constitution by relations that would tend to make operation of law. What is the difthem dependent on either party. It ference, in legal effect, between its means twelve men who are not in being written in by operation of law terested in the event of the suit, and and its being expressly incorporated who have no such bias or prejudice therein? Absolutely none. Had the in favor of, or against, either party Constitution provided in express as would render them partial to- terms that no person should be tried ward either party. These, among

These, among except on presentation or indictothers, are the general definitions ment of a grand jury composed of which we consider are guaranteed men, we would not now be called by the Constitution."

upon to determine this question. I think the learned jurist used the Yet there is no difference between word "men" advisedly.

using the word “men” and adoptIn the case of State v. Hartley, ing a system which existed at com22 Nev. 342, 28 L.R.A. 33, 40 Pac. mon law, from which all but men 372, in which was involved the con- were excluded. To my mind, the stitutionality of an act which pro- proposition is too clear and simple vided that twelve persons should be to justify argument. summoned to appear as grand ju- But it is said that $ 27, article 4, rors, of which number the court of the Constitution, which provides should select ten persons to consti- that “laws shall be made to exclude

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