State v. Mees, 272 N.W.2d 61 (N.D. 1978). The State's conclusion rests partially on the proposition that where the Legislature has expressly enumerated some things (i. e., the grounds on which a challenge to an indictment may be launched), it does so to the exclusion of all others. The State relies on State v. Walla, 57 N.D. 726, 224 N.W. 211 (1929), as support for this proposition. However, while the statutory rule of construction that the express inclusion of some items carries with it the implied exclusion of others, is well known, this court clarified the application of that rule in Juhl v. Well, 116 N.W.2d 625 (N.D. 1962).
Every grant of power to a public officer or tribunal imposes a duty to use such power if, and when, the occasion prescribed for its use arises. State v. Walla, 57 N.D. 726, 224 N.W. 211. An instruction prefaced with the words "if you believe" instead of, "if you believe from the evidence," is erroneous and should not be given. Ewing v. Runkle, 20 Ill. 448; Parker v. Fisher, 39 Ill. 164; Mathews v. Hamilton, 23 Ill. 470; Ingois v. Plimpton, 10 Colo. 535; Munden v. State, 37 Tex. 353.
A grand jury is not, like a petit jury, subject to general voir dire inquiry. United States v. Knowles, 147 F. Supp. 19 (D.D.C. 1957); State v. Walla, 57 N.D. 726, 224 N.W. 211 (1928). The grand jury panel may by statute in Florida be challenged "only on the ground that the grand jurors were not selected according to law."
We have answered certified questions in a number of cases in the past where an issue of fact remained for trial following a decision by this court settling issues of law which were certified to us. In State v. Walla, 57 N.D. 726, 224 N.W. 211, this court answered certified questions of law in a criminal case charging forgery where a motion had been made to set the indictment aside on legal grounds. The trial court overruled the motion and the question of law involved in the motion was certified to this court.
Expressio unius est exclusio alterius. Nome State Bank v. Brendmoen, 70 N.D. 391, 295 N.W. 82; State v. Walla, 57 N.D. 726, 224 NW 211; 50 Am Jur, Statutes, Section 244; Dickinson v. Thress, 69 N.D. 748, 290 N.W. 653. In this case the legislature has declared that no reply on the part of the plaintiff is necessary, with four exceptions, none of which directly or by implication includes fraud.
Upon analogy the rule applicable to challenge to the panel of a grand jury is applicable to the challenge to the panel of the petit jury. With respect to a grand jury, the enumeration of specific grounds for challenge to the panel excludes all grounds not enumerated. State v. Walla, 57 N.D. 726, 224 N.W. 211. There are exceptions to the rule that one may not be shown to be guilty of one crime by showing him to be guilty of another and independent crime.
We think therefore that this body was competent to return an indictment. As tending either directly or indirectly to support the views above indicated, we cite the following cases: State v. Shanley (1905) 20 S.D. 18, 104 N.W. 522; State v. Lamphere (1905) 20 S.D. 98, 104 N.W. 1038; State v. Forgraves (1913) 32 S.D. 21, 141 N.W. 990; State v. Hanson (1928) 53 S.D. 205, 220 N.W. 518; People v. Southwell (1873) 46 Cal. 141; State v. Longstreth (1909) 19 N.D. 268, 121 N.W. 1114, Ann. Cas. 1912d 1317; State v. Walla (1929) 57 N.D. 726, 224 N.W. 211; People v. Lay (1916) 193 Mich. 17, 159 N.W. 299, L.R.A. 1917B, 608. Cf. also 12 R.C.L. 1027; 31 C.J. pp. 804, 805.