# State v. Guthrie > Washington Supreme Court · March 24, 1936 · 185 Wash. 464 URL: https://www.frixlaw.com/law-library/cases/3992910 ## Case - **Full name:** The State of Washington, Respondent, v. Calvin Guthrie Et Al., Appellants - **Court:** Washington Supreme Court - **Decided:** March 24, 1936 - **Citations:** 185 Wash. 464; 56 P.2d 160; 1936 Wash. LEXIS 467 - **Precedential status:** Published - **Opinion:** Dissent by Steinert - **Judges:** Steinert, Geraghty, Millard - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3992910 ## Opinion text Steinert, J. (dissenting in part) — I agree with the majority that the judgment should be reversed, but I am of the opinion that, instead of directing a new trial, we should order the indictment quashed and the case dismissed, on the ground that the grand jury had not been impaneled as required by law. The majority opinion apparently concedes that the element of chance is an essential in the selection of grand jurors, and that this element cannot be supplanted by the exercise of arbitrary choice on the part of the presiding judge. That is the rule emphatically laid down in State ex rel. Murphy v. Superior Court, 82 Wash. 284 , 144 Pac. 32 . Recognizing the doubt that had previously existed concerning the manner of selecting grand jurors, and with the view of reducing the matter to one of certainty and thus affording a guidance to the judges of the superior court on future occasions, this court, in the Murphy case, indicated two very simple ways of making the selection, both of which are consistent with the practice at common law and the usual statutory procedure. In that case, the court said, on page 290: *487 “A certain number of names might be drawn from the jury lists. The clerk might be directed to draw the names of individuals and qualify them singly until a sufficient number of jurors were obtained and these might be impaneled as grand jurors. Or, the judge might direct that all of those answering the summons of the court should be examined as to their qualifications and, out of the number so qualified, the clerk should draw by chance a sufficient number to make up the grand jury.” Under the first method, the grand jurors would qualify singly, and when a sufficient number had so qualified,, they would constitute the grand jury. Under the second method, all of the individuals answering the summons would first be examined as to their qualifications, and from those so qualified would be drawn, by chance, a sufficient number to make up the final body. It is apparent that, under either method, the element of chance is fully preserved. According to the first, the chance is in the initial drawing followed by immediate qualification. According to the second, the chance is in the final drawing, after qualification of the entire number. But in either case, the panel would be complete, and the matter would be at an end when the required number of jurors found to be qualified had been drawn. There would then be no occasion or opportunity for leaving the panel open so as to permit of further or preferential selection from those remaining undrawn. If, as in this case, the court can first draw seventeen jurors, then excuse four on its own motion, drawing four others in their stead, and subsequently excuse five more, and in turn supply their places, then, manifestly, the court can by this method select any particular seventeen that it sees fit. All that the court would have to do would be to continue excusing and drawing until it had procured the *488 particular individuals that it had determined should serve. This is not chance; it is arbitrary choice, exercised by the court. The court undoubtedly has the right to exercise its discretion in passing on the qualifications of the respective grand jurors, but it does not, in my opinion, have the right to select a particular group from a number who may be found to be qualified, nor to adopt any method which leads to that result. I am certain that, in this case, the presiding judge had no other motive or desire than to procure a well-qualified jury, and I am satisfied that he pursued what he thought was a proper course. But I am equally satisfied that he was mistaken in his course and that the method taken by him was wrong, and I am unwilling to give sanction to it as a rule or guide in future cases. It is not sufficient to say, as the majority opinion says, that, if a case should ever arise where the court has abused its discretion, this court will intervene. With such latitude of discretion as is conferred by the majority opinion, I doubt that occasion will ever arise where we can say that the court has abused its discretion. The method of selection has been plainly prescribed by the Murphy case, and we should insist that it be followed. If it is followed, then no just cause of complaint can arise, and no unmerited suspicion can ever attach. Since the method was not followed, I think that the indictment should be quashed and the case dismissed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3992910. Public record. Not legal advice.