Leslie, C E

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North Dakota Law Review Volume 6 Number 5 Article 4 1929 How Can We Get Better Juries Than We Do C E. Leslie Follow this and additional works at: https://commons.und.edu/ndlr Recommended Citation Leslie, C E. (1929) "How Can We Get Better Juries Than We Do," North Dakota Law Review: Vol. 6 : No. 5 , Article 4. Available at: https://commons.und.edu/ndlr/vol6/iss5/4 This Article is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. BAR BRIEFSMerchants Bank vs. Schatz: Defendant was cashier of plaintiffbank. M., defendant's father-in-law, deposited $15oo in plaintiff bankto the defendant's credit, for the specific purpose of enabling defendantto build a house. Defendant gave M. a note secured by mortgage onthe house, which mortgage was recorded. The bank closed in 1926.Previous to the bank's closing defendant had used the money so depositedfor other purposes, and used the bank's money to build his house. Afterthe bank closed defendant sold the house to one I., who was a bonafide purchaser. The plaintiff bank re-opened and then started actionto impress a trust on the property and alleging it superior to the claimof I. HELD: M. was a bona fide holder of a mortgage for value andhas first lien on the property. The bank is liable to him for misappro-priation of money deposited for a specific purpose. The bank is entitledto impress a trust on the property, but must take it subject to M's mort-gage to the extent for which it is responsible for misappropriation offunds.Ottertail Power vs. Clark: Plaintiff and defendant entered into awritten agreement whereby defendant gave plaintiff an option to pur-chase the electric distribution system in city of A. Plaintiff exercisedthe option, paid the purchase price, and defendant executed and delivereda bill of sale, warranting present right to sell and quiet enjoyment ofthe property. Sale was made without defendant's obtaining permissionfrom the Board of Railroad Commissioners in accordance with PublicUtilities Act. Upon defendant's subsequent refusal to make suchapplication, plaintiff instituted the action to compel defendant to performhis contract, plaintiff now operating the property. HELD: Lowercourt is correct in granting injunctive relief against the defendant, butspecific performance will not lie. The primary duty to apply to theRailroad Commission for an order authorizing a proposed sale is on thevendor, but after contract for sale has been entered into, the vendee isvested with sufficient interest to make such application.HOW CAN WE GET BETTER JURIES THAN WE DO?Many fine addresses have been delivered, and fine articles written,by able jurists on the subject of jury trials, and many substantialchanges have been made in some of our states; but all, or most all of them,have been along the line of reducing the size of the trial jury, fixingit so that unanimity is not necessary to the finding of a verdict, and thedoing away with the jury in certain classes of cases. I am limiting myremarks to one simple phase of the case: how can we get better personson the juries?The need of the changes which I feel should be made should firstbe shown, and I know of no better way of showing it than by citingsome cases. In an action brought for malpractice a juror of the kind whohas his opinion and can't be changed, held out for a long time for a verdictin favor of the plaintiff, giving as his only reason that he had thedoctor once and was pretty sure "he give me that wrong mediseen."A few terms after the same juror, in a case involving many thou-sands of dollars, got on the jury because it was impossible to keep himoff. The evidence was such that the Court directed a verdict for thedefendant, who appeared to be unpopular because he was a rich andsuccessful banker. The Supreme Court afterwards sustained the rulingof the trial court. At the end of that case, this same juror and twoother members of the jury met the defendant's attorneys, abused them,BAR BRIEFScursed the judge, and stated that they got on the jury purposelyto "salt" the defendant. Three jurors, in other words, had sworn falselybecause they hated the defendant. Were those men of sound mind anddiscretion ?Another man caused a disagreement in a criminal case. * He insistedthat the defendant's attorney might have crossed him off, and wishedto punish the attorney. As a matter of fact, the attorney had suggestedto the Court, in the presence of the jury, that the man was a firemanand exempt, hoping that he would claim his exemption.Perhaps those are extreme cases, but nearly every attorney canremember some just as bad. Many times a juror has attended courtfor the whole term and not been allowed to serve on a single case, be-cause the attorneys felt he was unfit to serve. He was not, in theopinion of the attorneys, of sound mind and discretion.To get better juries we must commence at the beginning, and notlet such men get on what I call the Jurors' Waiting List, or, if theydo, then they should not get on the jury panel for the term.There are four main steps in the selection of the twelve personswho shall serve on each case. As I hope these lines will be read by somewho are not attorneys, I wish to examine these steps somewhat indetail.The first step is that of determining who of the citizens are com-petent, and who of those declared competent are exempt from juryservice. At present Sections 814 (amended i921) and 2430, CompiledLaws, determine these two facts; but those sections can, and I think,should be amended.The second step is that of selecting from those declared competentand not exempt a list of two hundred names of people in each county,which list must be kept full by the selection of additional names fromtime to time. This list, so far as I know, has no name given it bystatute, so I have named it the "Waiting List."The third step is that of selecting from that Waiting List thejurors who shall attend each term of court, and the persons so selectedconstitute what is "called the Panel for the Term.The fourth step is the selecting of the twelve persons from thePanel who shall act as the jury to try a case. As I do not intend topropose any changes in this step, I shall say nothing more concerningit, but I do feel that there is great need for changes in each of the firstthree steps. Let us examine them.i. Who Are Competent?Section 814, as amended, reads: "All citizens . . having the quali-fications of electors, and of sound mind and discretion, and not judgesof the supreme, district or county court, sheriff, coroner, jailer, attorneyat law engaged in practice, and who are not subject to any bodilyinfirmity amounting to disability, and who have not been convicted ofa criminal offense punishable by imprisonment in a penitentiary, andnot subject to disability on account of the commission of any offense,which by special provision of statute law, disqualifies them, are com-petent to serve on all grand and petit juries in their respective countiesor judicial subdivisions."The balance of Section 814 declares who of those who have beenmade competent are excused from service, but before going further I wishBAR BRIEFSto suggest some changes which I think should be made as to who shouldbe competent to act as jurors. As the statute reads a person can beconvicted of crime and still be competent, provided the crime is notpunishable by imprisonment in the penitentiary. A person who stealsonly $I9.oo, and is convicted, is still fit for jury service, and may helptry a person accused of crime, or try any civil case, but if he steals$21.oo, and is convicted, he cannot serve. A person may be convictedof rape under circumstances which make it rape in the first degree,and thereby become unfit to act as a juror; while another person maycommit the same crime, under circumstances which show even morereal criminal intent, and still, because it happens to be rape in thesecond degree and not punishable by imprisonment in the penitentiary,he is, by statute, still fit to serve on the jury. Is this a correct rule ormeasure to be used? I would prefer to have this section read that noperson convicted of crime should be eligible for jury service, and nosuch name should get on the Waiting List.The reader will notice the provision that the prospective juror mustbe of sound mind and discretion. I have failed to find in the city inwhich I reside any case where the Court has defined the meaning ofthose words, but I know I have seen men serving on juries whom Iwould not consider of sound mind and discretion, and they served onvery important cases."These things ought not to be." I feel that those words shouldhave a meaning, such meaning as would prevent the forwarding of somenames to the clerk of court for a place on the Waiting List, and if theygot that far they should never get on the Jury Panel for the Term.There is not even a hint in the statute as to when, where, or by whom itshall be determined whether or not a person is of sound mind and discre-tion within the meaning of that statute. Certainly it is no time tosettle that question when a person is being examined on the Voir Direas to his fitness to serve on that particular case. No doubt if it wasknown that a person being called, at some prior time, had been declaredinsane or idiotic by a proper court, the trial judge would excuse himfrom service at the suggestion of either party, and the same if it happenedto appear from such examination that the proposed juror was of veryweak mind. But most attorneys would hesitate a long time before tryingto prove then, and in that manner, that the juror was not of sound mindand discretion. Yet there should be a time and place when and whereit could be properly done. I feel that it should be done, so far aspossible, at the time the names are being selected for places on theWaiting List, and, if any incapable persons' names got past that point,then at the time of selecting the Panel for the Term.I personally feel, also, that some educational qualifications shouldbe required by statute. The juror should be able, at least, to understandthe English language, not simply understand it sufficiently to catch apart of the meaning of what is said, but sufficiently to understand itsmeaning fully.I notice that in Texas (See McCampbell vs. State, 35 Am. Dec. 728)the trial judge allowed eight men who could neither speak or understandthe English language to act on a jury and convict a person of a felony,in spite of defendant's objection. We are not told on what ground thejudge so ruled, in spite of the decision of the supreme court of thatstate made six years before, but it seems to me that he might have doneso on the ground that the statutes of that state did not call for anyeducational requirement.BAR BRIEFS2. Who Are Excused or Exempt?After stating who are competent, -Section 814, as amended, pro-ceeds to excuse from jury service persons engaged in certain pursuitsor occupations, and then excuses all "members in good standing of anyregularly organized fire company." Now, it is all right for those whobelong to a paid department in a city where they have only a few menwho are kept on duty to fight fires, but there are in many small citiesand large villages fire companies which are more or less regularlyorganized, and the statute should be so worlded that members of suchcompanies will not be held to be free from jury service. In many placesthe large majority of our most able men for jury service would beexempt, perhaps as the law now reads. Then, there is an attempt madein this section to excuse women from jury service. I hope to examinethat provision in another article.Then there is Section 2430 of our Compiled Laws, which excusesfrom jury service each member of the active militia, who shows thathe has performed his duty for the year "immediately preceding a sum-mons to act as a juryman," and also excuses any one who has been amember of the militia and been honorably discharged. No one, itseems to me, should be excused because he is or has been a member ofthe militia, unless it happens that he is called on such duty at the time thecourt meets. It is absolutely wrong to excuse any one from jury dutysolely because his business is such as to make it inconvenient for himto serve, or because he might be injured financially, unless to such anextent as would lead all parties to excuse him at his own request. Whenall who are serving or have served on the militia, and all who aremembers of volunteer fire companies, and all who might suffer a slightfinancial loss, are excused by the Court, a large percentage of our verybest material is lost. Many of our younger men, best fitted for jurors,are either volunteer firemen or members or ex-members of the statemilitia. Many business men get excused by the Court on the groundthat business needs their attention. Some times I have thought theyshould not get excused so easily. The more his time is worth to himself,the better able is he, as a rule, to give some of his time for jury service.He is just the kind of man who is likely to have a suit some time and wantgood men to serve on his case. More of such applications for releasefrom jury service should be refused.The foregoing is part of an article submitted by Mr. C. E. Leslieof Hillsboro.ATTENTION COMMITTEE CHAIRMENAs this year's annual meeting comes early in August, to-wit: onthe 15th and 16th, it is important that committee reports be submitteda little earlier than usual, in order to have Bar Briefs-containing theprinted reports-in the hands of the attorneys prior to the meeting.The following chairmen are, therefore, requested to have theirreports in the hands of the Secretary by the 3 oth of July:C. H. Starke, Automobile Insurance and Regulation;W. A. McIntyre, Constitution and By-Laws;R. W. Cooley, Legal Education and Admission;L. J. Palda, Jr., Public Utilities;William Lemke, Salaries-Terms-Powers of Judges;Harry Lashkowitz, Uniform Laws;P. B. Garberg, Bench and Bar Ethics.

How Can We Get Better Juries Than We Do

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How Can We Get Better Juries Than We Do

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