State v. Gibbs

Practice — Defective Record — Want of Care in Preparing Record on Appear. — Counsel admonished if more care is not taken in preparing records on appeal, the court will dismiss the cases on their own motion. The court, finding no reversible error in the-record, affirms the judgment of the court below. (Syllabus by the court.)

APPEAL from District Court, Bear Lake County. The trial court erred in denying the defendant’s challenge to the array or panel of jurors for that they were not drawn or summoned in the manner required by sections 3947 to 3960, inclusive, of the Eevised Statutes of Idaho. The defendant was-entitled as of right to trial by a jury selected, drawn, returned, summoned and impaneled strictly in the manner prescribed by statute. (State v. Da Rocha, 20 La. Ann. 356; State v. Morgan, 20 La. Ann. 442; People v. McKay, 18 Johns. 217; Mc-Closlcey v. People, 5 Park. C. C. 308; State v. Jenlcins, 32 Kan. 477, 4 Pae. 809; People v. Labadie, 66 Mich. 702, 33 N. W. 806; People v. Arceo, 32 Cal. 40; Clinton v. Englebrecht, 80 TT. S. (13 Wall.) 434; Clawson v. United States, 114 D. S. 477, 5 Sup. Ct. Rep. 949.) Evidence, although in itself competent as circumstantial, cannot be connected with the defendant by mere hearsay. (1 Greenleaf on Evidence, sec. 108, note; 1 Roseoe’s Criminal Evidence, 25, 26, note; People v. Wyman, 15 Cal. 70; Eopt v. Utah, 110 U. S. 574, 4 Sup. Ct. Rep. 202; 4 Am. Cr. Rep. 417.) The verdict is contrary to law and the evidence. It is against law for that it was not returned by a lawful jury, and was based upon unlawful evidence. It is against the evidence for that the evidence taken as a whole proves only an aggravated assault. (Commonwealth v. Merrill (Mass.), 14 Gray, 415; Thomas v. State, 16 Tex. App. 535; Christian v. '•Commonuiealth (Ya.), 23-Gratt. 954;- Commonwealth v. Fields, 4 Leigh, 468; Thompson v. State, 43 Tex. 583; Saddler v. State, 12 Tex. App. 194; Sanford v. State, 12 Tex. App. 196; State v. Neely, 74 N. C. 425, 21 Am. Rep. 496; State v. Massey, 86 N. C. 650, 41 Am. Rep. 478.) It does not appear that there was a “material departure from the forms prescribed in respect to the drawing and return of the .jury,” and a challenge to the panel can only be founded on a material departure from the statutory forms. (Pen. Code, sec. 7819.) If, as appears in this ease from that part of the transcript stricken out, the jury was summoned on a “special venire,” then the only objection to the panel is the one prescribed in section 7824 of the Penal Code. (People v. Welsh, 49 Cal. 174; People v. Ah Chung, 54 Cal. 398.) “It is no less a crime, even though the aggressor should abandon his intentions, by reasons of the pains of a stricken conscience alone.” (People v. Stewart, 97 Cal. 238, 32 Pac. 8; Glover v. Commonwealth, 86 Ya. 382, 10 S. E'. 420; 1 Bishop’s New Criminal Law, last ed., secs. 732, 733.) The question of intent was a matter solely for the jury. (People v. Swalm, 80 Cal. 46, 49, 13 Am. St. Rep. 96, 22*Pae. 67.)