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(Nev., 174 Pac. 706.)

by prohibition is asked from this court. In this respect it is asserted that J. H. Cazier, the foreman of the grand jury which returned the indictment, was disqualified under clause 6 of 155 of the Criminal Practice Act (Rev. Laws, § 7005). This section provides:

"A challenge to an individual grand juror may be interposed for one or more of the following causes only:

"1. That he is a minor; "2. That he is an alien; "3. That he is insane;

"4. That he is a prosecutor upon a charge against the defendant;

"5. That he is a witness on the part of the prosecution, and has been served with process or bound by an undertaking as such;

"6. That a state of mind exists on his part in reference to the case, or to either party, which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging; but no person shall be disqualified as a grand juror by reason of having formed or having expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public rumor, statements in public journals, or common notoriety; provided, it satisfactorily appears to the court upon his declaration, under oath, or otherwise, that he will, notwithstanding such an opinion, act impartially and fairly upon the matters to be submitted to him."

Attached to the affidavit of petitioner's counsel there are set forth the interrogatories propounded by petitioner and by the state to the juryman J. H. Cazier. This examination took place after the finding of the indictment. It is disclosed that the juryman testified that he had seen an account of a case of State of Nevada v. Arne W. Parus, as the same was published in the newspapers; that he had heard the case talked of, but not in detail; that he had not talked with any of

the members of the grand jury relative to the case.

He was interrogated, and answered thus:

Q. From what you had read and from what you had heard about this case, had you formed or expressed any opinion concerning the guilt or innocence of Mr. Parus?

A. Why, I don't know that I have; no. I have heard it spoken of and regretted, and I have heard people say, and I don't know but what I have myself expressed regret that such a thing would happen, and that is about all.

Q. You hadn't any opinion, prior to the time that you took up the consideration of this case, as to whether a crime had been committed or not, and as to whether Mr. Parus had committed such a crime?

A. Well, I believe from what I had heard that I did consider a crime had been committed; I believe that was the

Q. And that Mr. Parus was the party who had committed it?

A. Yes; that is, through just what I had heard; I felt like a crime had been committed; yes, I admit it.

Q. And that was prior to the time that you took up the consideration of this case as a grand juror?

A. Well, yes, I might say that, but I hadn't paid very much attention to it, not knowing the party; but I think, perhaps, I was impressed with what I had heard; that a crime had been committed; yes, sir.

Q. Well now, that opinion that you had, was that a fixed, settled opinion, one that would require evidence to remove?

A. Well, I don't know that it was; I don't know that it was. If the evidence was conclusive that there hadn't been a crime, why, I would decide it by the evidence.

Q. But you were in that state of mind, were you not, Mr. Cazier, at that particular time, which would require evidence to have changed that opinion?

A. Well, I don't know but what it would, yes. I felt like a crime had

been committed, and of course we, after the case was submitted and the particulars were known, why, I felt like we was justified in finding

Q. Now, as I understand it, at that time and before the witnesses were called and sworn in that case before the grand jury, as I understand it, your mind was in that condition that it would have required evidence to remove the opinion that you had as to the guilt of Mr. Parus.

A. That might possibly have been the case.

Q. Well, now, wasn't it the case? A. I hadn't thought very much about it, as I tell you, but I felt like a crime had been committed; yes, I admit that, some crime.

Q. And it would have at that time, before you heard a word of testimony, it would have required evidence to have removed that opinion, wouldn't it?

A. Possibly, yes.

Q. Well, wouldn't it?

A. Well, I hadn't thought about it that way, Judge; I don't know; I hadn't thought about it. I thought a crime had been committed, of course; from what I had heard and what I had seen in the papers, I thought a crime had been committed, but I hadn't thought about the evidence, and, in fact, I didn't know whether it would be submitted to this jury or not. I hadn't thought about it much prior to the time it came before the jury.

Q. Well now, Mr. Cazier, if you were to have been-if it were a question of your being chosen as a trial juror and you were being examined upon your voir dire, and you had been asked if you felt that you would have been a-would be an impartial juror, wouldn't your answer have been, "No, I don't think I would make an impartial juror in this case?"

A. No, Judge; I couldn't say that. If I had been examined as a trial juror I believe I would have given the defendant a fair and impartial trial. That is the way I felt; I had no prejudice; I didn't know the

man, and I don't have any distinct recollection of being introduced to Mr. Winter.

Q. But at that particular time you did have such information respecting this matter that you were satisfied in your own mind that Mr. Parus was guilty of the offense charged?

A. Yes; I felt like he was guilty of the offense charged, because-or he was, from what I had heard

On cross-examination, the juror, Cazier, described his state of mind thus:

Q. As I understand, Mr. Cazier, the only idea you had of this case, before it was presented to you as a grand juror, was gleaned from newspaper reports and a little casual talk, is that right?

A. Yes, I that was what I based my belief on, of course; that is the only thing I could; I didn't have anything else.

Q. Did you talk, at any time prior to the time this matter was presented to you in the grand jury room, to anyone who was a witness in any way in this case?

A. No, I think not. I don't think I ever met any of the witnesses, not that I recall now.

Q. What you heard, then, was in the form of this public rumor going around, was it?

A. Yes.

Q. And the rest of it was from the articles that were published in the local papers here?

A. Yes. I picked up the local paper in the window and noticed it, and then I, after coming up here, I heard it mentioned, I couldn't say by whom either, now; I have heard it mentioned though; that is about all. I don't know that I have discussed it with anybody, any more than just to mention the fact that the crime had been committed, or the supposition was that a crime had been committed.

Q. And from that talk that you heard and from those newspaper reports, you formed a certain impression, which was based upon the facts as related in the newspapers?

(Nev., 174 Pac. 706.)

A. Well, yes-well, I don't know that I based any opinion.

Q. Now, was that impression that you formed in the nature of an opinion as to the guilt or innocence of Arne Parus of the crime of murder?

A. Well, I knew that he was the accused; that is all I knew, through the paper, that he was the accused, and I hadn't paid much attention. I don't know anything about the details or the circumstances surrounding the killing; of course, I couldn't determine whether it was murder, or justifiable homicide, or what you would call it; I felt like a crime had been committed.

Q. And yet you feel that prior to the time that you heard the evidence in the grand jury room you would have been fully qualified as a trial juror in the case?

A. Yes; I felt like I could have given the defendant a fair and impartial trial. I had no fixed convictions as to his guilt or innocence, because I didn't know the circumstances.

-effect of opinion formed.

The juryman was interrogated at greater length, and was cross-interrogated, but we find nothing in his examination which would indicate that at the time at which he became a member of the grand jury, and prior to the time at which that body undertook the investigation of the case, he was possessed of a state of mind which would prevent him from acting impartially, and without prejudice to the substantial rights of petitioner. There is nothing in the record from which we might infer that the impression or opinion held by the grand juror was other than one which, if formed at all, was based on public rumor and what he had read in the current newspapers. The record, as it is before us, fails to bring the juror within the rule, which, under our statute, would preclude him from serving on the grand jury prior to the investigation of the case of petitioner. This is especially true in view of the language of subdivision 6 of 7005 quoted, by which it is

made plain that it is not every opinion or impression formed that will preclude a juror from acting in a case. The opinion which will disqualify must be one based on something more substantial and tangible than mere rumor, or the report of current publications. It must be more deep-seated and substantial than a vague general opinion of the existence of a public offense.

Indictment

effect.

A third ground is urged here why this writ should issue. In this respect it is contended that the accusatory body which brought in the indictment against petitioner was not selected by the officers prescribed by law, but was selected by the district judge acting alone. From the record as it is before us, it appears that the members of the grand jury were selected by the district judge and one member of the board of county commissioners. From all that we may ascertain from improperly the record, there ap- selected jurypears to have been a substantial compliance with the statutory requirements in this respect. Section 4931, Rev. Laws. It is not every technical defect in a proceeding of this character that will vitiate the acts of the officers in drawing, summoning, and impaneldrawing the grand jury. Where in ing the jury there is a substantial compliance with the statute on the part of the designated officers, and where this compliance indicates freedom from bias or prejudice, the courts are not inclined to set aside indictments found after due deliberation on the part of the grand jury, where everything indicates fair and impartial consideration. The whole contention of petitioner relative to this phase is met squarely by the decision of this court in 275, 30 Pac. 891. the case of State v. Collyer, 17 Nev.

The writ prayed for should be denied, and the proceedings dismissed. It is so ordered.

Sanders, J., concurs.

Coleman, J., dissenting:

I regret that I am unable to reach

the conclusion set forth in the majority opinion as to the qualification of women to do grand jury duty, for I feel that their service upon our grand juries would greatly tend to produce a more wholesome moral atmosphere within the various counties of the state; but sentiment must not be permitted to enter into the consideration of those matters.

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I shall not elaborate in the presentation of my views. In the adoption of our Constitution, while it is provided by § 6, article 1, that "no person shall be tried for a capital or other infamous crime cept on presentment or indictment of a grand jury, ." the Constitution nowhere says, in express words, who shall comprise the grand jury. It is contended by petitioner, and conceded by respondents, that at common law only men were qualified to sit on a grand jury, and that this rule obtained up to the time of the adoption of our Constitution. It must be presumed that the constitutional convention, in providing that indictments might be found by a grand jury, contemplated a grand jury composed of members possessing the qualifications required of grand juries at common law. The general rule is laid down in Cyc. (8 Cyc. 740) as follows: "Constitutions themselves, being instruments in the nature of re-enactments of an acknowledged system of principles coeval with, and a part of, the common law itself, and subject to judicial interpretation from their inception, it necessarily follows that the definitions of terms used in constitutions and statutes are to a great extent to be found in the common law, and in the common usage and understanding of those terms, according to the institutions of the country in which they originated and were brought into use in the administration of government."

Mr. Cooley, in his work on Constitutional Limitations, 6th ed. p. 74, says: "It is also a very reasonable rule that a state constitution shall be understood and construed in the light and by the assistance of

the common law, and with the fact in view that its rules are still left in force. By this we do not mean that the common law is to control the Constitution, or that the latter is to be warped and perverted in its meaning in order that no inroads, or as few as possible, may be made in the system of common-law rules, but only that for definitions we are to draw from that great fountain, and that in judging what it means, we are to keep in mind that it is not the beginning of law for the state, but that it assumes the existence of a well-understood system which is still to remain in force and be administered, but under such limitations and restrictions as that instrument imposes."

In the case of Carpenter v. State, 4 How. (Miss.) 163, 34 Am. Dec. 116, the court says: "It is a general rule that, where terms used in the common law are contained in a statute or the Constitution, without an explanation of the sense in which they are there employed, [they] should receive that construction which has been affixed to them by the former. To ascertain then in what the right of trial by jury consists, we must necessarily recur to the provisions of the common law defining the qualifications, and ascertaining the number of which the jury shall consist; as the standard to which, doubtless, the framers of our Constitution referred. At common law the number of the jury, for the trial of all issues involving the personal rights and liberties of the subject, could never be less than twelve; though there are some precedents which show that a verdict by a greater number would not, on that account, be void. The legislation of the state has left this particular topic untouched. It has in no instance prescribed the number of the jury, if it were at all important for it to have done so; but in all cases where the term 'jury' is used in our statutes, it is regarded as one of fixed and determined meaning; ascertained by the paramount law."

In at least two cases this court

tute the grand jury, the court considered the question at some length, but a brief quotation will suffice as follows: "At the time of the adoption of the Constitution of Nevada, wherein it is declared, 'No person shall be tried for a capital or other infamous offense except

on presentment or indictment of a grand jury' (art. 1, § 8), the provisions of the General Statutes (§§ 3795, 4106, 4107) which are declaratory of the common law were in force, being enacted by the territorial legislature of 1861. We, therefore, conclude that, when the people of this state adopted this constitutional provision, they had in view a 'grand jury' as it existed at common law and under the statutes at the time of the adoption of the Constitution. It is so held by this court with reference to the right of trial by jury in construing the third section of the same article of the Constitution. State v. McClear, 11 Nev. 39. The reasoning in that case is applicable to the question at bar." (Italics ours.)

(Nev., 174 Pac. 706.) has determined that such is the rule in this state, and while the opinions are instructive, it is not deemed necessary to comment upon them or to quote from them at length. In the case of State v. McClear, 11 Nev. 39, Hawley, Ch. J., considers at length the constitutionality of an act in which the court discussed a question similar to the one here involved, and, to my mind, used language decisive of this matter. Said the court: "It was claimed upon the oral argument that the constitutional provision only requires a jury of twelve men. That the number is all that is essential. We must confess that this appears to have been the view entertained by the legislature in the passage of the amended act. If this be true, it would be within the power of the legislature to take away all the other qualifications without violating any of the provisions of the Constitution, and the right of trial by jury-so long esteemed as the. palladium of our liberties-if such power was exercised, would soon dwindle into insignificance and become a byword and reproach upon our entire judicial system. We think that the term 'jury,' as it is used in the Constitution, means twelve competent men who are free from all the ties of consanguinity and all other relations that would tend to make them dependent on either party. It means twelve men who are not interested in the event of the suit, and who have no such bias or prejudice in favor of, or against, either party as would render them partial toward either party. These, among others, are the general definitions which we consider are guaranteed by the Constitution."

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I think the learned jurist used the word "men" advisedly.

In the case of State v. Hartley, 22 Nev. 342, 28 L.R.A. 33, 40 Pac. 372, in which was involved the constitutionality of an act which provided that twelve persons should be summoned to appear as grand jurors, of which number the court should select ten persons to consti

If the law quoted is sound, as I think it is, then our constitutional convention provided for a grand jury of men as clearly as though the Constitution itself had used the word "men." The word "men" is written into the Constitution by operation of law. What is the difference, in legal effect, between its being written in by operation of law and its being expressly incorporated therein? Absolutely none. Had the Constitution provided in express terms that no person should be tried except on presentation or indictment of a grand jury composed of men, we would not now be called upon to determine this question. Yet there is no difference between using the word "men" and adopting a system which existed at common law, from which all but men were excluded. To my mind, the proposition is too clear and simple to justify argument.

But it is said that § 27, article 4, of the Constitution, which provides that "laws shall be made to exclude

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