The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1895-07-17
THE KRUG DECISION.
eupreme Court Sustains the
Judgment on Every Point.
only ONE SERIOUS OBJECTION.
-,.t Was as to Definiteness OF Charges,
but They Are Found Sufficient
Full Text of the Decision.

rha fui, text OF the decision of the
.sorene court sustaining the judgment
a the superior court In the case of
1Acaph Krug was received In the city
~ssterday. II sustains the Judgment on
svery point raised by the defense, and
- prepared by Justice Dunbar. Chief
srstsee Hoyt and Justice Scott concur
.;nr and Justices Anders and Gordon
ss~seuting. II is as follows:
Grand jury was inrpaneled in King
~es,cfy 10 investigate a charge of ers1bezzle-
s.enf and other nEaw-ful tIse of the funds
- me city of Seattle by its TREASURER
IAolpf, Krsig. the appellant herein An In
Ascfn1ent was returned against the ayypei-
t.nt and trial was had before the Hon
Moore, OF Spokane county. who pre-
500 In the absence of the regular Judge
Hon T. ]. Humes.
The Indictment was based upon section 81
4 the penal code. charging the unlawful
xse OF money OF the city OF Seattle in order
n make a profit out Of the same. Appellan.
fnsroduced no testimony in his own behalf.
Int dennurred to the complaint, raised
unny objections to the Introduction of tes-
tsunony. and upon the testimony of the
STATE was found guilty as charged. Jude-
ment was pronounced and am appeal was
enken 20 this court upon the errors alleged.
TIE first contention OF the appellant In
"A
motion to quash the indictment. made upon
TIE ground that the grand jury was not
properly selected. properly impaneled and
properly CHOSEN. II is insisted that the
grand Jurors had not been selected by the
county commissioners for the year 1893 or
fN4; that the same had not been certified
"a separate lists TO the clerk Of the supe-
rioY court. as provided in section IS OF the
code OF procedure, which provides that
of
or before the first Monday of February in
each year, shall select from the persons in
their county qualified TO serve as petlt
Jurors the names Of 100 persons to serve as
Detst Jurors for the ensuing year. and from
tse persons in their county. qualified to
ssrve az grand jurors. the names OF 100 per-
egns 20 serve as grand jurors for the erlSsll-
INK year and shall certify the same in sep
srste lists to the clerk OF the superior
court" These provisions Of the statute. it
kinSsted BY the appellant, are mandatory
and intended TO secure for each year a new
kst Of qualified electors and freeholders:
and that, the question OF the qualification
Of the grand jury having been timely
raised. II was prejudicial error on the part
Of the court 10 override the motion
Not n Serious IrreguIarity.
We do not think this contention can be
sustained. We are inclined to think that
this was only an irregularity which does
not AFFECT the substantial rights OF the de-
feDdant Section 81 OF the same chapter
which provides for the selection of the
grand Jury provides especially tina. 1.-THE
failure on the part of any officer to per-
form the duties required Within the time.
or other irregularity in said drawing. shall
IN no way invalidate the selecting drawing
or slmmoning of said jurors" This IL
seems to US, would sufficiently indicate
that the intention OF the legislature was
that the provision relied upon by the appel
hnt was not a mandatory provision, the
omission az which would inyalidate the
proceedings.
But as further showing that there 5s no
particular virtue In the provision. section
y OF the same chapter provides that "if
Tor any cause the court shall see fit 20 set
ASIDE the yenire for grand or petit jurors.
returned az above provided an open veuire
may thereuron ISSUE 10 the sheriff" etc:
and. as further sustaining the same idea,
ne latter part OF section IS ethe section re-
lied upon hy appellantl provides that III
rom any cause the county commissioners
ara unable to select the fun number of
names In this section provided for. they
shan select such less number as they may
agree upon" The whole chapter seems 10
rslate the idea that the provisions Of sec
uoa as are mandatory. or that the defend
am has any vested right in any particular
mole OF choosing the grand Jury.
ar Bishop, In his work on criminal pro-
celnre section SIS (tf1irf etiitionl, under the
heaf or Directory Statutes says:
A statute may be only directory 10 the
oacers-as. that the grand Jurors shall he
summoned at least five days before the
nrst day or the court or that the court
saaH imranel the grand jury on the first
csy OF the term-a noncompliance with
which Is no ground for setting aside the
fsr4r~a
ant"
The objection In the case at bar is simply
an objection OF time We think. under the
aataorities and under the provisions OF tho
Naiute Itself the objection should not he
sustained, and that the court committed no
'FsoT IN refusing the motion. In fact. We
yange from the record IN this case that Il
VAS really not the desire 81 the counsel for
we defense that this motion should be sus-
,sined by the court. for the new Judge was
informed by the counsel that n had been
we practice OF the aourt that the Jury had
nsht to remain until II should please the
!alge 10 ISSUE a new venfre and that the
st'se OF that court had ruled against him
upon this contention. But. however that
20. usy ne, nothing appears in the record %
s90ca'e that the defendant was in any
.V injured by the action Of the court. or
Hat the grand jurors were not qualified
tV~ad Jurors under the law. The qualifca-
NVa OF grand juror after all - the main
question - decide. and that question could
ave been decided in each instance by an
summation or the individual juror.
Law Applies to City Officers.
TIE next cortention * that section 81 81
.ae penal code does not include within its
follows.
II any state county. township. city.
sh, Village o. other officer. elected or an
sssIte1 under fhe constitution or laws OF
STATE shall in any manner
- - authorized by law use any portion OF
- money in;rps,e'i 70 h.yn for safeleep-
-, N order - make a profit out 81 tho
- OF shall use the same for any pGfr-
- nor authorized by law. he shah be
ned guilty - . felony" etc.
- 'sferdant was an officer under a
81 lo'defS charter. 20 Wit. one voted by
~ Peonle n cities - the flrSt class, viz.
- CITY OF Seattle and Il is commended
=, tAet Ne IS rot city officer, elect
W appointed un}er the consti tuition, he
49, ss NJ - nowhere dcnonlinases or tesig-
So as one - Ire officers for the eNecu-
- o' TIE mandates or provisions ~ that
u'nent' that ~ IS not an officer elected
v-IFointei under any law % the state -
:. .Ssal'Ston prescribed hy the legislature
=. STATE FOR the execution ~ any Law
81 s.e state 81 Washington. and thar.
e.esoTe. ne - rot within the provisions
Se'SAon 8 y tho penal code TOR within
setter o. in,snament 81 the same.
INNS ihaf such a construction % the
- would - fnNCe3 and unnatural and
aSAnori.."s cited BY the appellant 10
No. ne contention are not IN point
- :" them enter ur~oa a discussion o.
~ We're Or who were rot state officers
-. - eon;en3e'f ~ The state in this case
Ia -