
    Forrest Ellis v. State of Nebraska.
    Filed April 10, 1908.
    No. 15,434.
    1. Grand Jury: Impaneling:. Since tbe enactment of section 584, criminal code, no grand jury can be lawfully organized, unless its selection and impaneling has been previously ordered by a judge of the district court for the county in which said grand jury is to act.
    2. -: • — —1—. Such order must be in writing and filed with the clerk of the district court on or before the day fixed by law for the drawing of jurors for the term of court at which the grand jury is to appear.
    3. -. Jones v. State, 18 Neb. 401, and State v. Lauer, 41 Neb. 220, followed.
    
      Error to the district court for Madison county: Anson A. Welch, Judos.
    
      Reversed.
    
    
      William V. Allen, M. D. Tyler and Mapes & liasen, for plaintiff in error.
    
      W. T. Thompson, Attorney General, and Grant G. Martin, contra.
    
   Letton, J.

The plaintiff in error Avas indicted for assault Avith intent to commit great bodily injury. To the indictment he filed a plea in abatement, challenging the authority of the grand jury Avliich presented the indictment. A demurer to this plea Avas sustained, exception Avas taken, a trial upon the charge had, and the plaintiff in error found guilty of a simple assault, from Avhich conviction he has prosecuted error to this court.

It appears from the plea in abatement that no grand jury had been ordered to be summoned for the April, 1906, term of the district court for Madison county; that during the session of the April term an order Avas made by the court, reciting: “It appearing to the court that a grand jury is required, and there having been no grand jury draAvn for service at said term, and there being no grand jury in attendance and it being necessary that a grand jury be called, it is ordered that the sheriff of said county summon from the body of the county Avithout delay 16 good and laAvful men,” etc. The sheriff, in obedience to the order, summoned 16 persons, Avho served as grand jurors, and Avho presented the indictment under Avliich the plaintiff in error AAms tried and convicted. An amended plea in abatement Avas also filed, challenging the indictment on account of certain proceedings had before the grand jury, but, in. vieAV of the conclusion Avliich avo haAre reached as to the first point presented, it is unnecessary to consider the question raised by such amended plea.

The question for determination is whether the grand jury which found the indictment was legally drawn and summoned. Prior to 1885 all prosecutions for crime in the district courts of this state were begun by an indictment presented by the grand jury. By the provisions of sections 658 to 668, inclusive, of the code, the grand jury was required to be selected from the body of the county by the same officers and in the same manner as the petit jury, and the manner of filling vacancies in either panel, or of summoning a new panel in the event of a failure from any cause of the panel of either grand or petit jury, was provided for by section 664 of the code, or by section 405 of the criminal code. These sections, taken together, provide a complete and orderly method of procedure for the securing of both a grand and petit jury for each term of the district court, and providing for any contingency with regard to vacancies or failures in.the. panel which might arise in the course of events. But in 1885 the system of prosecution by information Avas adopted, and the investigation of crimes and the presentation of indictments therefor by a grand jury Avas made the exception, and not the rule. An act Avas passed entitled “An act to provide for prosecuting offenses on information and to dispense with the calling of grand juries except by order of the district judges,” which is found as chapter LIY, Comp. St. By section 7 of this act (criminal code, sec. 584) it Avas provided: “Grand juries shall not hereafter be drawn, summoned, or required to attend at the sittings of any court within this state, as provided by law, unless the judge thereof shall so direct by Avriting, under his hand, and filed with the clerk of said court.” And sections 660, 661 and 662 of the code Avere amended to correspond. In Jones v. State, 18 Neb. 401, the effect of this legislation was considered with reference to proceedings taken by the district court under the provisions of section 405 of the criminal code, providing for the calling of a grand jury from the bystanders after the regular grand jury had been discharged, and the court, Judge Maxwell writing the opinion, held that the former statutes regarding the summoning of grand juries were repealed by implication, and that the power of the district court to summon a grand jury under section 405 Avas taken aAAray. In State v. Lauer, 41 Neb. 226, the facts were that during the session of the September, .1892, term of the district court for Lancaster county, for Avhidi no grand jury had been ordered or summoned, an order Avas made in writing by that court, by Judges Hall and Tuttle, directing that a grand jury be called at a later day in the term. The grand jury appeared and returned an indictment against Lauer, Avho filed a plea in abatement on the ground that the order of the district court directing the summoning of the grand jury was void for Avant of authority, and that the grand jury’s proceeding's Avere null and void. A demurrer by tli.e county attorney to this plea Avas overruled by Judge Strode of the district court, and the state excepted and brought the case here for revieAv. This court held that so long as section 584 of the criminal code remains in force no grand jury can be lawfully selected and impaneled, unless first ordered by the judge of the district court for the county in which such grand jury is to act; that the order must be in writing and filed Avith the clerk of the district court more than 20 days before the first day of the term, and that the county board must select the persons from Avhom the grand jury is to be draAvn. The judgment of the district court sustaining the plea in abatement was affirmed. The proceedings in the Lauer case Avere in a county of 70,000 inhabitants; but there is no difference in the application of the principle involved betAveen such a county and all others in the state, since the only difference between the law as to the selection of juries in such a county and pne of the usual class is merely as to minor details in the proceedings. The reports of these tAVO cases do not disclose whether section 664 was called to the attention of the court, but the proceedings in the Lauer case seem to have been taken under the provisions of that section, and the circumstances were almost identical with those in this case. Prior to the legislation of 1885, if a grand jury Avas discharged during a term of court, then, under the provisions of section 105 of the criminal code, or, if for any other reason there ayus no panel in attendance, then by section 661 of the code, the court might order the sheriff to summon another panel. It Avill be observed that the power resided in the court, and not in the judge. By the law of 1885 the imperative statement is made that “grand juries shall not hereafter be draAvn, summoned; or required to attend at the sittings of any court Avithin this state, as provided by hvw, unless the judge thereof shall so direct by Avriting, under his hand, and filed Avith the clerk of said court.” As construed in the Jones and Lauer cases, this section must be read in connection Avith the provisions of section 658, ct seq., and the order must be made in writing and filed by the judge on or before the day fixed by Riav for the draAving of jurors for the term of court at which the grand jury is to appear. We adhere to the Iuav as laid down in these cases.

We think the interests of justice are more likely to be subserved by draAving a grand jury by lot from a list of names prepared by the county commissioners, and as nearly as may be proportionate from each precinct in the county, than by the selection by one man of the Avhole panel. We do not wish to be understood as holding that vacancies in the panel may not be-filled under the provisions of section 661. The law as to this has not been changed. We have also held repeatedly that the provisions of this section Avith reference to the manner of summoning petit juries are still in force. Barney v. State, 19 Neb. 515; Carrall v. State, 53 Neb. 431; Welsh v. State, 60 Neb. 101; Dinsmore v. State, 61 Neb. 418; Lamb v. State, 69 Neb. 212. The legislation of 1885 did not affect the selection of petit jurors, nor did it interfere with the filling of the panel of either grand jury or' petit juries, under the provisions of section 664.

Following tbe Jones and Lauer cases, we are of the opinion that the district court was without authority to summon a grand jury in the manner in which the jury which found the indictment in this case was summoned, and that the plea in abatement should have been sustained.

For these reasons, the judgment of the district court is reversed and the cause remanded.

Eeversed.  