State v. Symonds , 36 Me. 128 ( 1853 )

Howard, J. —

Every indictment must be found by a grand jury legally selected, and duly constituted, and competent for the purpose. Such jury must be composed of not less than twelve, nor more than twenty three, “good and lawful men;” and the concurrence of twelve, at least, of the panel, is necessary to the finding of an indictment. These are doctrines of the common Jaw, which we have adopted in criminal proceedings. Our constitution requires that “the Legislature shall provide by law a suitable and impartial mode of selecting juries, and their usual number and unanimity, in indictments and convictions -shall be held indispensable.” Art. 1, § 7, The Legislature has prescribed the qualifications of jurors, and the mode of selecting and returning them, its chapter 135 of the Revised Statutes. It is made the imperative duty of the clerks of the Courts, in the respective counties, to issue venires to the constables of towns, forty days before the second Monday of September, annually, directing them to eause the required number of grand jurors to be drawn, in towns specified, in the manner prescribed by statute, §§ 10 -14; Act of 1842, c. 248, § 18. In performing these duties the clerk is an officer of the law, and acts under the mandate of the statute, and not by directions or authority of the Court, as one of its officers. So, grand juries, which are instituted as accessories to the criminal jurisdiction of the Court, are not drawn, summoned, or returned, by authority of the Court, or, of any of its officers acting in that, relation.

The Legislature has required that grand juries shall be selected and returned in the same manner as juries for trial; and in respect to the latter, has authorized the Court to complete the panel, when a sufficient number of the jurors duly drawn and summoned, cannot be obtained for the trial of a cause, by causing jurors to be returned from the by-standers, or from the county at large; and in term time, to issue venires for as many as may be wanted. But in regard to the former, it has conferred no power upon the Court, to complete a deficient panel, by causing jurors to be returned de talibus circumstantibus, or in any other manner. The whole subject is within the control of the Legislature; they may give to the Court the same power, as to both juries, to complete a deficient panel, or withhold it; but unless it be given, it cannot be lawfully exercised.

In some of the States the Courts have legislative authority for ordering grand jurors to be returned from the by-standers. Burr’s trial, 1, 37; where such jurors were returned, in the Circuit Court of the United States, de talibus circumstantibus, under the State laws of Virginia. The laws of Alabama and Mississippi, it is understood, authorize similar proceedings. In. Massachusetts, in ease of a deficiency of grand jurors in any Court, writs of venire facias may be issued by order of Court, to cause such' further number as may be required, to be returned forthwith, as grand jurors. R. S. Mass. c. 136, § 4.

It is admitted, and it also appears by the record, that, at the term when the indictment, in this case was found, the grand jury, which was empaneled at the preceding term to serve for a year, and then consisted of thirteen, had been reduced to eleven members. To supply the deficiency, three other persons were drawn and returned on a .writ of venire facias, which issued during the term, by order of Court. These persons were sworn, and charged as grand jurors, and added to the panel; and acted in finding this . bill. But as their selection for the purpose, was not in conformity to laws of this State, they constituted no part of a legal grand jury. Consequently, the indictment could not have been found by at least twelve lawful jurors, and is void and erroneous at common law; and in the spirit and language of an Act of Parliament,.(11 H. 4,) should be “revoked and forever holden for none.” 2 Hale, 155; Hawk. b. 2, c. 25, §. 16; 3 Inst. 32 ; 4 Black. Com. 302; 1 Chitty’s Crim. Law, 306; Commonwealth v. Smith, 9 Mass. 107; Low’s case, 4 Maine, 439.

Upon the authority of the case last cited, the objection, that the indictment was found by less than twelve grand jurors, taken on motion in writing, in the nature of a plea in abatement, at the arraignment of the prisoner, was in season, and available. The remarks of the learned Judge, in Commonwealth v. Smith, that “ objections to the personal qualifications of jurors,- or to the legality of the returns, are to be made before the indictment is found,” cannot be received as law, to their full extent. Commonwealth v. Parker, 2 Pick. 563; Low’s case, 4 Maine, 448, 449 ; 1 Chitty’s Crim. Law, 307.

Judgment arrested.

Shepley, C. J., and Rice, J., concurred.