
    STATE v. HAYES.
    A challenge to the regular panel having been interposed by accused and allowed, an order directing the sheriff to -summon forthwith from the body of the county 24 citizens, possessing the qualifications of jurors, to serve as petit jurors for the pending term, was expressly authorized by Rev. Code Cr. Proc. § 3 03. •
    iCode Cr.’Pro'c. § 303, providing that, when a challenge to the regular panel is allowed, the court must discharge the jury and another, may be summoned for the same term forthwith from the body of the county or subdivision, or the judge may order a jury to be drawn and summoned' in- the regular manner, is not -in conflict with Const, art. 6, § 7, guaranteeing a- speedy public trial by an impartial jury out of the co.unty or district in. which the offense is alleged to have been committed. . ..
    That the sheriff’s name was indorsed on the information as a witness for the state-did not as a matter of law disqualify him to summon a new jury panel to.try accused. 1 ■
    That the name of the sheriff wa-s .indorsed on. an .information against accused as a witness for the state did not constitute implied ■bias as' defined by ReV: Code Cr. Proc. § 338, so as to disqualify him' to summon anew'jury to try accused.- ' •
    Where^ sheriff haying apprehended ,accused secured and preserved evidence against him, and had formed an opinion as to his guilt, but it'did not appear "that'he'had conferred with any one summoned as-a juror or attempted to 'influence any jiiror’s judgment, and' it also d-id not appear that -the. special panel summoned by the- shriff was not composed of as intelligent, reliable.,-and impartial persons as would have been secured had a special panel been -otherwise summoned, accused, n,ot having objected in the first instance to the special panel be-
    
      ‘i!iág(‘)éiííÉttiioned >by.<3{&?§ íJ§EéflfC> WAi'-'nb't •^Sáti’ííld to have the, B’áífio .. quashed-hecause-ioi-t-hre-BlieK-ffl-s alleged actual bias-. ■ ■ • -
    .A_specjalv.pa.jjsl, h,aying,;be§h'summoned . by.kthe^sheriff-. tja cused, he objected thereto because of the sheriff]s.iaq.tualbias, invsup- ■’ pbrt of"’which' oiTectioh í¡é'w*as permitted to] examiné' the'sheriiS ,as xo •"his qtia'iificatiíms.nM'Thé 'challenge being ’ disállqWícl;''ánd-'vtlie ‘special ■ ,.p^pph..exh:-au?.tedj/,the;^he>}ÍSí:#as ordered14-o sümm,on a. second ho .•which panel when summoned accjisedr-also for the first timei'.objected on, the same ground. ' Helia',' ‘that the court did. not err ip refusing to permit ’ a''r'é-e'xám-iná:tibn- of" the sheriff; there being no'offer iOf<;’different proof from;-that intf,oduced;>inhsupport'-of the previous'¿háliengé. '■ ” • v
    . . Refusal-q.f,Requested instructions .covered -by .the, instructions iof the court is not error. .. ( ......
    An •information charged murder;'and the court instructed that if 'the killing whs'db'né'with'malice aforethought an’d'W'ith'a' premeditated ■ design to effect deceased's death, .^Without authority ofdaft»,.'and without justifiable pp_,excusable cpuse, defendant,.w.otjldyhe,. guilty ,of murder as charged, and the jury should so find , and fix his punishment at ■ death óf ''i'tóbriséííimérít £¡jp ’ÍTfey ’hh-t/ if the jtiry h'ádu-éasoná'b'le' doubt as to the defendant-s <guilt of murder,.:it-should, acquit'him of that charge,, and,determine whether, he was -guilty of manslaughter ;in the first or second degree, in which event they would use a specified for,m of'Verdict.' Bfeíd; that a verdict finding "accused guilty ‘'as charged 'in .the, information'”, and fixing "his' punishment”'at ‘death”1 -whs 'h.ot objectionable: -for, uncertainty,.', :1 . • | ,. . s: , .
    (Opinion filed, Sept. 3, 1909.).
    .Appeal fromi: Circuit Court,. Rawfeiice- CoumtyA Hon; -W.‘"G. Rice,- Judge.
    ..■.■'•Charles A. Hayes was convicted*'of murder/-and «he'-appeals.
    Affirmed..-
    ■ " Robert' C’.'-Hayes- .and 7’ohn T\ He'ffronySdi ’appellant; SI 7V. Clark, Atty.- Gén.y znd'RoberVP: Stewart; Special 'Stated 'Attorney, for the ■State'..- •■ ■ - ,f '1 , ' ••'• .' '' *-r •
   HANEY, P. J'.'

tj'pbn’the 'issues’'raised'by‘an,’information charging' murder 'arid:'a' plea of-not'guiltyj the jury in this action returned á'verdict'fiti&irig t'fie defendant'guilty,as charged, fixing'liis punishment at deatii. íhe testimony'of the state tended to "prove that Lena'Scharr and Ered Sam'üelsoh, who worked for the’former’s father,1 were in a corral; that Miss 'Scharr was'near Saniuelson, wáitiñg "for him to'finish 'milking, 'when' 'the accused" cá’me ’across the fence saying, “t am tired of this,” and’,'shot immediately; &at Miss Scharr ran to the corral gate followed, by Samuelso’nj that three more shots were fired by the accused and Samuelson fell; that .the accused directly came to the house, and ashed where Lena’s mother was, saying, “I will get her next”; that the accused then had a revolver; and that Samuelson’s back was towards the accused when all the shots were fired, A physician testified that an examination of Samuelson’s body disclosed a wound extending from three inces below the shoulder blade caused by a bullett which was imbedded beneath the edge of the breastbone, and which had passed through the heart and left 'lung, producing practically instantaneous death. The accused, as a witness on his own behalf, testified in part as follows: “I went to Scharr’s place that evening because I had an engagement for the next morning with Miss Lena Scharr, and Lwas going ,to work the next morning for Mr. Morrell, and I had to let her know before going to work. I saw her in the corral about 8 o’clock in the evening, I was at the northwest corner of the corral on the outside, and she was .about 15 feet from me in the corral and about the same distance from the gate — -down in the corner of the corral by the gate. Mr. Samuelson was there. They were standing as close as they could together, He stood with his arm around her waist and her arm around his shoulder. His back was toward me, and her face in his breast, the other side of him. Her face was toward me, but behind him! The cow was walking a little way from them going up the hill. Samuelson put his hand under the girl’s clothes. That made me angry. My feelings were too angry to be expressed. I jumped over the fence, and went straight at them as fast as I could with both my hands in the air. My purpose was to separate them. At that time I had no intention of taking the life of Samuelson. When I got within four feet of Mr. Samuelson, the girl says, she kind of moved a little bit, and she says' ‘There is Bill,’ meaning me. Samuelson turned around to me, and threw one hand to his hip pocket. His back had been to me, and, as I approached him and those words were used by Lena Scharr ,he whirled facing me, and threw his hand to his hip pocket. He turned on me quick, .and the motion to his hip pocket was as quick as anybody could make it. I thought I would be shot. I was at that’ time in fear of imminent death. * * * When Samuelson made this motion to his hip pocket, I drew my gun as quick as I porfid, and fired just a§ cjtjick as I díTW tfie gun. Samuelsdn was standing facing pie at fhe fime I fire4 fhe first shot. Tfie shpts were fired rapidly anfi fir ffie fiifPPfÍPf? pf the opposite corner pf the corraf. I didn’t cfiapge ffie direcfiipia of the gun during the firing. I didn’t see Samuel§on after fhe fipsf sfiot was fired. It was too dark, anfi the fiasfi of fhe gun fifipfied me so thaf f could see nothing. When I gof over fhe fence, Lena ran straight through the gate, and thaf was fhe last I saw qf her at that time. I didn’t know affer the shots were fired fhat I had wounded Samuelson. My object was to protect nqyself. I was angry, I reckon.” Defendant also testified, in substance, that fie was engaged to marry •Miss Scharr when she was abouf 15 years of age, but fhat tfie engagement was “kind of broken off” .a year and a half afterward. Miss Scharr, who was 18 at the fime of the homicide, stated that, if she- ever was engaged to the accused, it was when she was 13 years old.

A challenge to the regular panel having been interposed by the accused and allowed, the court ordered the sheriff to “summon forthwith from the body of tfie county * * * 24 citizens possessing the qualifications of jurors ‡ ‡ ‡ to serve as petit jurors for “the pending term, to which order no objection was made or exception taken by the accused.. The sheriff having complied with such order, and the jurors thus summoned having .appeared, the accused challenged the special panel upon the following grounds: (1) The court was not authorized to majce the aforesaid order. 3(2) The sheriff was not qualified'to execute such order (a) fiecause he was named as a witness on the information; (b) because he had formed and expressed an unqualified opinion as to the merits of the controversy; (c) because he had been engaged for weeks in the pursuit and capture of fhe accused; (d) fiecause he had talked with material witnesses named on. the information; (e) because he had gathered and retained various objecfs of a material nature which the statute intended to introduce in evidence; (f) because he had assisted the state’s attorney in examining the accused while in custody as to maferial facfs; and i§) because he had by other acts and conduct disqualified himself from selecting the special panel. (3) The panel summoned pursuant to such order did not (¡constitute or permit'the! selection ofTsti'ch an impartial jury 'as1''the Constitution requires. The sheriff was called as a witness by the accused "in'support of the challenge, and testified, in substance, tliat he was' actively engaged in the pursuit and-arrest of the; accused; that he edllected evidence "against him; that he had taheed with ■material witnesses for the state; that lie had conversed to some'extent "with" "the accused; that he -had formed and may-have !expressed an opinion as to the guilt Of thé actused'; that" such opin- ■ !i 011 • was'an-"uri qualified'one'; that it remained un’chansied at'the time the special panel "was summoned, but'that" he'had ho- Mas against" the accused; that-he'“was very Sorry'for the nian”','1 find that he s'elecied the special panel as- fairly as'lie cófild in accordance •with his position as-'sheriff;'and'as-fairly as!his cónsóience"'would permit him tó' do. • The" challenge- was disalloWd, to which ruling the'accused'duly excepted. ■ " ’ ''■ ".. " '■

•' The 'argument of counsel is to this" "effect: ‘ (i) ■ Tile "method of selecting this" special panel is nót' authorized' by the-'statute'; ór (2), if it is, the statute is unconstitutional; and (3), conceding the'method tp'be authorized and'constitutional/the person directed tó 'sümmon' the- panel was "disqualified. - “The ■ jurors duly' drawn and summoned for the trial of civil 'actions are’ also the jurors for the trial'of criminal actions;” Rev. Code Cr. Proc. § 302. ' “Trial jüries forcriniinal actions may also be'formed in the same’manner as trials juries in civil actions.” ■ Id. § 303. When a challenge to thd regular-panel'is allowed; “the cdurt must discharge the jury, and another .jury can be summoned for the sanie term forthwith from the body of the county or subdivision; or the judge may prder a jury to be drawn and summoned in' the regular' mannér.” I'd. 328. It is therefore clear- that the method pursued by the learned circuit court was expressly authorized by 'the statute." It is equally clear that the statute does not conflict with the right “to a speedy public trial by an impartial jury of the county or district in which' the offense is ’alleged' to -have been committed.” Const. S." D. art. 6, §-7. The right to an impartial jury is not new. ■ It did npt originate with the Constitution. :-Impartiality' was an "essential attribute or element of trial by jury as defined by 'the common law. Lommen v. Minn. Gaslight Co., 65 Minn. 196, 68 N. W. 53, 33 L. R. A. 437, 60 Am. St. Rep. 450; "OÍ-’-fhe two methods-of selection authorized by the statute the one pursued in this instance 'is-the one prescribed by thebommon law itself. “ U. S. v. Beebe, 2 Dak. 292, 11 N. W. 505. Mánifestly-'a'provision of the Constitu'tion designed to preserve'1 tlie common-law'right- to trial by jury is "not-violated by a.'1 statute authorizing the common-law method of procedure. -Moreover,--‘the mode of selecting the jury is only the means1- to an end;’ and only goes to the question of impartiality.'’ Lommen v. Minn. Gaslight Co., supra. Reasonable means to the -desired end have been''provided. ' When the special panel is returned, it is'subject' to' challenge’'for bias of the officer who summoned it, and each j’úrór may fee challenged' peremptorily or' for 'cause.' No person,''■■hotvever 'selected', heed be sworn as a juror before' á presumptively impartial judge is satisfied that such person " "will act impartially and fairly upon the matters' to be submitted tip him.” Rev. Code Cr. Proc. §§ 317-349. 'Slaving no doubt as to the’validity'of the" statute, tve proceed'to consider the qualifications of the sheriff. ‘ “When ' the panel is' formed from persons whose 'names are not draWri as jurors, á challenge may be takén to the panel on account of"any bias of the'ioffic'er who "summoned .them, which would be'good'ground' of challenge to a juror.” ' Id. § 327. The fa'ct that the’sheriff’s name was indorsed on the information ' as’ a witness for the state 'did not as a matter of law' disqualify him, nor was he' disqualified on account of' any implied bias as defined by the statute. Id:1 §’'338. ’ Soj if disqualified, it was on the' ground ' of actual bias — “the existence of a state of mind on the part of the juror, in reference' to the' case or 'to either party, which sáíisfiés the court, ih the exercise of á sound’ discretion', that he cannot try the issue impartially without' prejudice to the substantial rights Of the party challenging;” Id. 338. And the ruling of the learned circuit court should not be reversed in the absence of a clear abuse of discretion. State v. Hall, 16 S. D. 6, 91 N. W. 325, 65 L. R. A. 151. Though the sheriff’appears to have faithfully performed his official duty in ápprehéhding the accused, in securing and preserving evidence against hifri/ and to have formed an opinion as to his g'Ui-lt, it does not appear that he conferred with any one' summoned as'a juror or in any manner attempted to influence any juror’s judgment. Nor Roes it appear that the special pa^el was pot pqmpose.d qf as intelligent, reliable, and impartial .persons as would have beep secured through .the other method prescribe^ by the staple. T{ie learned circuit court was in position to observe the demeanor of the officer, the character of the persons summoned, .pnd ¡aU the circumstances attending the trial. The accused was given ample opportunity to thoroughly examine each proffered juror for cause; to exercise the peremptory challenges allowed by tire statute, was, we are satisfied, afforded as ample means qf securing an impartial jury as he would have been through the method which he rejected by objecting to the regular panel. Moreover, ffe ip effect consented to the appointment of the sheriff by not objecting or excepting to the order directing that officer to summon the special panel, and “he who consents to an act is not wronged by it.” Rev. Civ. Code, § 2414. Therefore, though it might have been wiser to have avoided the question here presented by the appointment qf some person against whom no possible objection could arise, it is clear that the ruling of the trial court does not constitute reversible error.

The special panel having been exhausted, fffe sheriff was ordered to summon a second, to which order no objection or exception was interposed. Upon the return of the second special p.apel, it was challenged by the accused upon the same gnoup(js as tlqe first, and the -court disallowes the challenge, declining tq perniit the accused to again examine the sheriff. The refusal to allow a reexamination of the sheriff was not reversible error when the accused did not object to the order designating the sheriff as the officer to summon the second special panel, and when the accused made no offer of proof different from that introduced in support of the previous challenge.

The contention that the court erred in refusipg to give certain instructions requested by the accused is not tenable. The rule is everywhere recognized, and has been often followed by this court, that it is not reversible error to refuse requested instructions if the substance of such instructions is covered by the charge as given by the court on i,ts own motion, as was thp case in this instance. The jury was instructed that they might und,er the Information find the accused guilty of murder, manslaughter in jfje first degree, or manslaughter in the second degree. The essential elements of each of these oifenses or degrees of the same offense were clearly stated. The distinction between each and the doctrine of self-defense were clearly defined; and, taken as a whole, no ordinarily intelligent juror could have understood the charge otherwise than .as requiring an .acquittal of each 'offense or degree of the same offense, if every essential element of each was not establishd beyond a reasonable doubt.

Finally, it is contended that the verdict is not definite and. certain as to the offense of which the accused was convicted. Considering the language of the verdict in connection with tfie information and charge of the court, there is no room for doubt as to the intention of the jury. The information hcarged tfie chime of murder. The learned circuit court instructed the jury: “If, after considering all of the evidence in the case, you are satisfied beyond a reasonable doubt that the defendant shot .the deceased, Fred Samuelson, and that the shooting was within the jurisdiction of this court — that is, within this county and state — and that it was done of the malice aforethought and with the premeditated design to effect the death of the deceased with intent to kill him, without authority of law and without justifiable or excusable cause, he would be guilty of murder as charged in the information and you should so find by your verdict, and, if you find the defendant guilty of murder as charged in .the information, -the duty would rest with you to fix the punishment, and, if you find the defendant guijty of murder beyond 'a reasonable doubt, you would have a right to fix the punishment at death or imprisonment in the state penitentiary for the balance of his natural life. If, after considering all of the evidence in the case, you entertain a reasonable doubt as to the guilt of the defendant as to the crime of murder, it would be your duty to acquit him as to that charge, and further determine whether he is guilty of manslaughter, and, if, after considering all of the evidence in the case; you should determine that the defendant was guilty of manslaughter in either the first or second degree under the evidence and the law as given to you by the court, you would so find by your verdict, and your judgment would be: ‘We, the jury in the above entitled action, find the defendant guilty of man'-slaughter .in (naming .whether -in'ih'el first or second degrfee)Y” -The jury found the accused guilty "“as charged in the information,” -'and fix'ed '“his" juüiishment'áb-death?” : The inótío'n- 'iii'dfre'st 'of •judgment ón the groúnd of•uffceftáiáty in 'th'e'yeifllct'wás Tropéríy overruled."" ." ' ' ” ’ ■""

'The judgment o'f the circuit court is'affirrfied.  