Hennigan v. State , 1987 Wyo. LEXIS 536 ( 1987 )

THOMAS, Justice.

The primary focus of Joseph Hennigan’s contentions in this appeal is his indictment of the institution of the grand jury. His complaints are directed generally to the function of the grand jury in Wyoming and specifically to claimed defects that are present in his case. His claims encompass assertions that he was denied due process of law and the equal protection of the laws. He also argues that his conviction should be set aside because the grand jury was not properly impaneled since there was no specific finding of necessity for calling a grand jury; the indictments are fatally defective because the grand jury foreman did not personally endorse the words “A True Bill” upon the indictment; and the proceedings manifest the lack of any indicia of reliability in determining probable cause. We conclude that the institution of the grand jury has been maintained in Wyoming as a proper prosecutorial procedure; there is no constitutional defect attaching to its use as it has been structured; and no error occurred in connection with the charges brought against Hennigan by indictment. The judgment and sentence with respect to each of the several counts brought against him is affirmed.

In his brief, Hennigan articulates the issues presented in this way:

“I. Whether the Appellant has been denied due process and equal protection of the law by the actions of the prosecution in deliberately avoiding the preliminary hearing and obtaining indictments without observing minimal standards of fundamental fairness.

“II. Whether the current Grand Jury was improperly impaneled under Section 7-5-102 in that there was no necessity for said body, requiring the dissolution of the panel and the dismissal of the indictments.

“HI. Whether the indictments in these cases are fatally defective for failure to conform to the statutory requirement that the foreman endorse the words ‘A True Bill’ upon each indictment.

“IV. Whether the indictments should be dismissed because the conduct of the ' Grand Jury lacks any indicia of reliability in the assessment of probable cause.”

In the Brief of Appellee, the State of Wyoming restates and reorders the issues in this way:

“I. Did appellant’s indictment by the grand jury deny him due process and equal protection?

“II. Was there probable cause for the grand jury to return the indictments against the appellant?

“III. Was the indictment of appellant fatally defective because the grand jury foreman did not endorse ‘A True Bill’ on the indictment in his own handwriting?

“IV. Was the grand jury properly impaneled?”

Hennigan was charged by indictment with four counts of delivery of marihuana in violation of §§ 35-7-1031(a)(ii) and 35-7-1014(d)(xiii), W.S.1977.¹ An arrest warrant was issued premised upon the indictment, and Hennigan, following his arrest, was arraigned on each of these counts. He entered a plea of not guilty as to each count. Prior to trial, Hennigan and a number of other individuals who had been indicted by the same grand jury presented a common motion to dismiss the indictments against them and dissolve the grand jury. That motion asserted the same contentions set forth in Hennigan’s brief in this court, and it was denied following a hearing by the district court. At the jury trial which followed, Hennigan was found guilty on each of the four counts, and he then was sentenced to a term of not less than 18 months nor more than 36 months on each count with those sentences to run concurrently. He was given credit against both the minimum and maximum terms for 216 days that he spent in the Campbell County jail in pre-trial confinement. Hennigan also was fined $750 on each of the four counts; the $25.00 surcharge for victims of crimes was imposed as to each count; and he was ordered to reimburse the State of Wyoming and Campbell County for the services of his court-appointed attorney in the amount of $1,000.

Hennigan does not attack the proceedings at trial nor the sufficiency of the evidence upon which the jury found him guilty beyond a reasonable doubt. His only claims of error in this case address the grand jury proceedings. The identical issues are being presented by other individuals who were charged by the same grand jury, found guilty by a petit jury, and now have appealed to this court. Because the contentions relating to the grand jury proceedings are identical in these several cases, we will treat with them definitively in this decision.

Hennigan’s contentions and arguments are heavily weighted toward a call for reform. Essentially philosophic in tone, they do not afford optimum assistance in our effort to identify incidents that can be characterized as errors of law. Walker v. Karpan, Wyo., 726 P.2d 82 (1986). Hennigan’s arguments, instead, manifest an effort to explain the errors that could be present if the extent rules were as Hennigan wishes them to be. This presentation broaches upon a failure to support the issues by cogent argument or pertinent authority which might justify a refusal to consider them. Newton v. State, Wyo., 698 P.2d 1149 (1985); Ostrowski v. State, Wyo., 665 P.2d 471 (1983); Stolldorf v. Stolldorf, Wyo., 384 P.2d 969 (1963).

Hennigan relies upon general statements of the law, arguments in favor of reform by various individuals and the American Bar Association, and a dissenting position by a justice of the Supreme Court of the United States. He has failed to cite any pertinent authority which is not distinguishable, and we may assume that such authority does not exist. Taylor v. State, Wyo., 658 P.2d 1297 (1983); Deeter v. State, Wyo., 500 P.2d 68 (1972). Given the essentially philosophic, rather than legal, debate still we shall address in detail Hen-nigan’s claims of error.

In doing so, we turn first to the claimed constitutional defects. Hennigan’s arguments about deprivation of due process and equal protection weave together and certainly are closely related. We address initially the claim that the utilization of the grand jury in this instance resulted in a deprivation of due process of law. Because of the rather free-wheeling nature of Hen-nigan’s claims, it perhaps is worthwhile to place the due process and equal protection concepts in the context of the pertinent constitutional measures. In Amendment Fourteen of the Constitution of the United States, the following language is found:

“ * * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In the Constitution of the State of Wyoming, we find Art. 1, § 6:

“No person shall be deprived of life, liberty or property without due process of law.”

Invocation of these constitutional protections depends upon some lack of due process or the denial of equal protection in connection with the event which had the effect of depriving Hennigan of his liberty or property. That event was the judgment and sentence entered upon the finding of guilty by the jury which tried his case. Hennigan does not discern any distinction between the conviction in the trial court and the institution of the charges upon which that conviction was premised. In our judgment that distinction makes a substantial difference.

The distinction just alluded to requires that we analyze the demand for due process which attaches to the temporary invasion of an individual’s liberty arising out of a determination that he should be held to answer a criminal charge in a trial court. An examination from this perspective teaches that the constitutional requirement for indictment by a grand jury found in Art. 1, § 13 of the Constitution of the State of Wyoming² and the Fifth Amendment to the Constitution of the United States³ was assumed by the drafters to be essential to the protection of citizens from overreaching by government. The purpose of the grand jury presentment or indictment was to assure that there was probable cause to present an individual before a petit jury for trial. The grand jury proceeding was perceived as the standard of due process which was part of the law of the land at common law. Historical exposition of the concept is set forth in Hopkinson v. State, Wyo., 664 P.2d 43, cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983); In re State v. Boulter, 5 Wyo. 329, 39 P. 883 (1895); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887); Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884); United States v. Smyth, 104 F.Supp. 283 (N.D.Cal.1952); L. Clark, The Grand Jury: The Use and Abuse of Political Power (1975); Campbell, Eliminate the Grand Jury, 64 J.Crim.L. & Criminology 174 (1973); J. Stephen, 1 History Criminal Law of England (1893); 38 C.J.S. Grand Juries §§ 2-47 (1943); 38 Am.Jur.2d Grand Jury §§ 1-41 (1968).

Historically, the debate has been whether alternative procedures, apparently recognized by constitutional provisions similar to those found in Art. 1, § 13 of the Constitution of the State of Wyoming, afforded the same measure of due process to the accused as did the grand jury. In Hurtado v. People of State of California, supra, the decision of the State of California to substitute charging by information for a grand jury indictment was challenged as contrary to the due process clause found in the Fourteenth Amendment to the Constitution of the United States. The United States Supreme Court decided that indictment by a grand jury is not the exclusive method for affording due process in a criminal case and upheld the determination of the California legislature to permit probable cause to be found by a magistrate as affording due process to an accused. Subsequently, the court recognized that the determination of probable cause necessary to bring a person to trial could be made by a prosecuting attorney under some circumstances and that this also is consistent with due process. Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98, reh. denied 370 U.S. 965, 82 S.Ct. 1575, 8 L.Ed.2d 834 (1962); Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231 (1914); Lem Woon v. State of Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913).

In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Supreme Court addressed due process in the context of a procedure for determining probable cause, which would justify incarceration prior to trial, and required such a determination to be made in a judicial proceeding, which would include a grand jury. It is pertinent, however, to emphasize how that limitation was articulated.

“In holding that the prosecutor’s assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court’s prior holding that a judicial hearing is not a prerequisite to prosecution by information. Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction.” Gerstein v. Pugh, supra, 420 U.S. at 118-119, 95 S.Ct. at 865. (Citations omitted.)

The members of the constitutional convention in Wyoming not only retained the grand jury but provided that the legislature could adjust that system. In addition to Art. 1, § 13 of the Constitution of the State of Wyoming, quoted in footnote 2, Art. 1, § 9 of the Constitution of the State of Wyoming provides:

“ * * * Hereafter a grand jury may consist of twelve men, any nine of whom concurring may find an indictment, but the legislature may change, regulate or abolish the grand jury system.”

Since 1895, the statutes in Wyoming have provided:

“All crimes, misdemeanors and offenses may be prosecuted in the court having jurisdiction thereof, either by indictment as hereinafter provided, or by information.” Section 7-6-101, W.S.1977.

The statutory provision has been superseded by substantially similar language found in Rule 9, W.R.Cr.P.

The procedure for prosecution by information first was challenged in 1891, and this court held that the legislature did have the authority to provide an alternative method for determining probable cause. In re Wright, 3 Wyo. 478, 27 P. 565 (1891). Subsequently, the court concluded that the legislature could provide for a determination of probable cause by the prosecutor, at least within certain limited periods of time. State v. Spears, 76 Wyo. 82, 300 P.2d 551 (1956); State v. Vines, 49 Wyo. 212, 54 P.2d 826 (1936); State v. Tobin, 31 Wyo. 355, 226 P. 681 (1924); Ackerman v. State, 7 Wyo. 504, 54 P. 228 (1898); State v. Sureties of Krohne, 4 Wyo. 347, 34 P. 3 (1893). This court has indicated some skepticism with respect to the procedure involving only the prosecutor. Nevertheless, the rule is clear that a determination as to when a preliminary hearing is necessary is within the prerogative of the legislature, and because the proceeding was unknown at common law, “[i]n the absence of a statute, no preliminary examination is necessary * * State v. Tobin, supra, 31 Wyo. at 368, 226 P. at 685; see also Montez v. State, Wyo., 670 P.2d 694 (1983).

In considering the constitutionality of a determination of probable cause by a non-lawyer justice of the peace, in Thomas v. Justice Court of Washakie County, Wyo., 538 P.2d 42 (1975), we said that, in accordance with Gerstein v. Pugh, supra, the protection of an individual’s Fifth Amendment rights against unfounded invasions of liberty and property requires a determination of probable cause by someone other than the prosecutor. We carefully noted, however, that a judicial hearing is not a prerequisite to prosecution by information, stating that “ ‘although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause.’ ” Thomas v. Justice Court of Was-hakie County, supra, at 49, quoting from Gerstein v. Pugh, supra, 420 U.S. at 119, 95 S.Ct. at 865, 866.

We do not understand this history as justifying a claim in Wyoming that, in the charging stages of a criminal case, due process can be afforded only by preliminary examination. Conceding that there are perceived advantages to a preliminary hearing, {In re Wright, supra; State v. Clark, 291 Or. 231, 630 P.2d 810, cert. denied 454 U.S. 1084, 102 S.Ct. 640, 70 L.Ed.2d 619 (1981)), which largely arise out of its adversarial nature (See Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970)), we are persuaded that in Wyoming the constitutional authority to declare how probable cause may be determined and whether a preliminary hearing is required has been granted to the legislature. E.g., Montez v. State, supra; Tobin v. State, supra. The legislature has retained the grand jury as one method for initiating criminal prosecutions and has provided for the filing of a complaint followed by a preliminary examination as another way. Our rules of criminal procedure recognize the determination of probable cause by either a grand jury or a magistrate after a preliminary examination. Rule 9, W.R.Cr.P.

Hennigan’s approach, and that of the others making the same claims, seeks to elevate the alternative procedure for prosecuting criminal cases, which first had to be tested in a due process context against the grand jury proceeding, to the standard for due process. The argument that those proceedings, which have been tested for their constitutional sufficiency against grand jury proceedings, now set the standard for due process is indeed circuitous. We are not persuaded to adopt it in the absence of any mandatory authority.

Hennigan claims that, even though the institution of the grand jury may survive a due process challenge, the utilization of the grand jury in his instance resulted in a denial of due process. The only authority Hennigan has presented to support his position is a number of proposals relating to the grand jury promulgated by the American Bar Association (ABA). The cases which Hennigan cites from other jurisdictions are premised upon statutory procedures different from those adopted for Wyoming, and the result in those cases is controlled by the difference in the statutes. The Supreme Court of the United States, in a trial context, has said “ ‘the failure to observe that fundamental fairness essential to the very concept of justice’ ” is a denial of due process. Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941), quoted in Munoz v. Maschner, Wyo., 590 P.2d 1352,1355 (1979). This court, however, has adopted the principle that it is incumbent upon the appellant to demonstrate how the procedures which were utilized denied him the process which is his due. In State v. Spears, supra, 300 P.2d at 557, we said, quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268, 143 A.L.R. 435 (1942):

“ ‘ * * * [I]t is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality. * * *

In espousing the principles promulgated by the ABA, Hennigan first argues that:

“The defendants were given no notice or opportunity to be heard even though there was no indication that such notification would result in a flight, endanger other persons or obstruct justice.”

It is essential to due process that one be afforded notice and a meaningful opportunity to be heard before a court of competent jurisdiction. Hall v. Hall, Wyo., 708 P.2d 416 (1985); Hopkinson v. State, supra. Due process does not incorporate a right to be heard at every stage of the proceeding, however, including a non-adversarial proceeding such as the grand jury, any more than it requires that a person be offered two opportunities for trial, one at the preliminary examination and another before the petit jury. Wilson v. State, Wyo., 655 P.2d 1246 (1982); see also, Hall v. Hall, supra.

A grand jury proceeding does not result in a determination of guilt or innocence. Thomas v. Justice Court of Washakie County, supra; United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Silverthome v. United States, 400 F.2d 627 (9th Cir.1968), cert. denied on appeal after remand 400 U.S. 1022, 91 S.Ct. 585, 27 L.Ed.2d 633 (1971).

« * * * An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face is [only] enough to call for trial of the charge on the merits.” Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397, reh. denied 351 U.S. 904, 76 S.Ct. 692, 100 L.Ed.2d 1440 (1956).

This limited effect does not require the full panoply of Sixth Amendment protections that are perceived necessary in a proceeding substituted for the grand jury proceeding, the preliminary hearing, in order to afford due process. As we have noted above, that necessity attaches because of the adversarial nature of the preliminary examination, and we have been unable to discover any precedent which requires that an accused be afforded notice and an opportunity to be heard before a grand jury in order to protect his constitutional right to due process.

Still relying on the principles espoused by the ABA, Hennigan contends:

“The grand jury was not fully instructed as to its duties and powers, particularly as to the definition of probable cause, its ability to call its own witnesses and the right to seek additional legal counsel from the court.

“The grand jury was not properly instructed as to the elements of the crime considered by it.”

Prior to appeal, Hennigan was not successful in his effort to obtain disclosure of the grand jury proceedings in the trial court. Consequently, he was unable to demonstrate what instructions were given to the grand jury. He urged this court to require disclosure of that record, but we did not find disclosure to be necessary. Subsequently, while the case was pending on appeal, the trial court entered an order authorizing the disclosure, and two additional volumes of a record of the grand jury proceedings, a transcript of the hearing on a motion to quash indictments, and 38 volumes of the transcript of the testimony of various witnesses were forwarded to this court. None of the transcribed testimony is material in Hennigan’s case, and only the Motion to Convene Grand Jury, the Order Convening Grand Jury, Instructions to the Grand Jury, Campbell County Grand Jury Report and the transcript of the hearing on the Motion to Quash Indictments and Dismiss the Grand Jury have any significance in this case.

In light of the new material, we address Hennigan’s parallel contentions about instructions in the context of the statutory procedures for a grand jury. Sections 7-5-203 through 7-5-205, W.S. 1977, set forth the required charges with respect to grand juries in Wyoming, and they provide:

Ҥ 7-5-203. Oath of foreman.

“When the foreman shall be appointed, an oath or affirmation shall be administered to him in the following words: ‘You, as foreman of this grand inquest, do solemnly swear (or affirm) that you will diligently inquire and true presentment make all of such matters and things as shall be given you in charge, or otherwise come to your knowledge touching the present service. The counsel of the state, your own and your fellows you shall keep secret, unless called on in a court of justice to make disclosures. You shall present no person through malice, hatred or ill will, nor shall you leave any person unpresented through fear, favor or affection, or for any reward or hope thereof; but in all your presentments you shall present the truth, the whole truth and nothing but the truth, according to the best of your skill and understanding.’

Ҥ 7-5-204. Oath of jurors.

“Thereupon the following oath (or affirmation) shall be administered to the other grand jurors: ‘The same oath which A.B., your foreman, hath now taken before you on his part, you and each of you shall well and truly observe and keep your respective parts.’

Ҥ 7-5-205. To be charged by judge; jurisdiction.

“The grand jury after being sworn, shall be charged as to their duty by the judge, who shall call their attention particularly to the obligation of secrecy which their oaths impose, and to such offenses as he is by law required to specially charge. After the charge of the court, the grand jury shall retire with the officer appointed to attend to them, and shall proceed to inquire of, and present all offenses whatever committed within the limits of the county in and for which they were impaneled and sworn or affirmed.”

Contrary to Hennigan's assertions that these statutory provisions were not complied with, a presumption of regularity controls:

“ * * * It must be presumed that the grand jury followed the court’s instructions as to its powers, duties and obligations and that each grand juror fully lived up to and observed his solemn oath. Indeed there is a strong presumption of regularity accorded to the deliberations and findings of grand juries.” United States v. Kakaner, 204 F.Supp. 921, 923 (S.D.N.Y.1962).

The supplementary material, in part, demonstrates compliance with the statutory requirements and, in part, validates the presumption of regularity. The required oaths encompass the general instructions with respect to a grand jury, and we must assume that these oaths were administered. The validity of this presumption of regularity is substantiated in this case by the Instructions to the Grand Jury which were forwarded informally as part of the record which the district judge ordered to be disclosed. That document, which is quoted in part in the dissenting opinion, demonstrates compliance with §§ 7-5-203, 7-5-204 and 7-5-205, W.S.1977, including particularly admonishments as to fairness and skepticism with respect to hearsay testimony. It also alludes to the oaths presumably administered in accordance with the statute. The Campbell County Grand Jury Report manifests familiarity with the elements of the offenses in issue in this case and the evidence needed to establish those elements.

Furthermore, the Instructions to the Grand Jury encompass the assistance of § 7-5-206, W.S.1977, which provides:

“§ 7-5-206. Right of prosecuting attorney to appear before jury; no one but jury to be present when jury votes, etc. “The prosecuting attorney, or the assistant prosecuting attorney, shall be allowed at all times to appear before the grand jury for the purpose of giving information relative to any matter cognizable by them, or giving them advice upon any legal matter when they may require it; and he may be permitted to interrogate witnesses before them when they or he shall deem it necessary; but no such attorney, nor any other person shall be permitted to be present during the expression of their views, or the giving of their votes on any matter before them.”

The several counts in the indictment encompass the appropriate elements for the offenses charged, and, whatever instruction may have been given to the grand jury, it is apparent that its members did understand the elements of these offenses. We conclude that the presumption of regularity which attaches; the requirements for administering oaths in the Wyoming statutes; and the correctness of the indictment itself overcome the claims of Hennigan with respect to these aspects of the ABA principles.

Hennigan’s next claim relying upon the ABA principles is:

“The grand jury was permitted to hear only hearsay offered by a deputy sheriff who recited from reports of the undercover agent.”

Hennigan concedes that he is not certain that this occurred, but we will assume that he is correct and that the grand jury’s determination of probable cause was based exclusively on hearsay.

Rule 7(b), W.R.Cr.P., states in pertinent part:

“(b) Probable cause finding. — * * * The finding of probable cause may be based upon hearsay evidence in whole or in part. * * *" (Emphasis added.)

Hennigan has not cited, and we have not discovered, any case which has held that the exclusive use of hearsay is a violation of due process. Conversely, the general rule, in the absence of some inhibiting statute or rule, is that hearsay is admissible in grand jury proceedings without limitation, and the determination of probable cause may rest exclusively on such evidence. Cases cited in Annot., 37 A.L.R.3d 612 (1971); see also, Wilson v. State, supra. We have no rules or statutes similar to those found in other states and the federal courts which eliminate or restrict the use of hearsay in grand jury proceedings or which require disclosure by the prosecutor that hearsay evidence is being given and provide that the grand jurors may require that the declarant be called. See United States v. Arcuri, 282 F.Supp. 347, aff’d 405 F.2d 691 (2nd Cir.1968), cert. denied 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969); cases cited in Annot. 37 A.L.R.3d at 626-630 (1971). Therefore, we conclude that it is proper to follow the genera] rule not the exception. See State v. Bauman, 125 Ariz. 404, 610 P.2d 38 (1980).

Hennigan also relies upon a claimed practice of Wyoming judges to weigh the reliability of the proffered hearsay and require the declarant to be produced if they find the hearsay questionable. If this does occur, it is not necessary nor constitutionally required. In our judgment, the disclosure at trial of unreliable evidence is a sufficient control upon the prosecutor in the presentation of cases before a grand jury. Questions of credibility and weight of the evidence are appropriately determined at trial, and there is no due process requirement for a determination of these issues in the course of determining probable cause. Wilson v. State, supra; Costello v. United States, supra. There is no more a constitutional limitation upon the use of hearsay in grand jury proceedings than there is a statutory limitation in Wyoming. See Costello v. United States, supra.

Hennigan’s next argument is:

“The grand jury proceedings were not recorded, thereby preventing a review of their sufficiency and propriety.”

The fallacy in Hennigan’s argument, in this regard, is that it assumes a requirement that there be a review of grand jury proceedings for sufficiency and propriety. The general rule is that grand jury testimony need not be recorded in the absence of a procedural rule or statute which requires recording, and the failure to do so does not violate due process. See cases cited in Annot. 25 A.L.R.Fed. 723 (1975). While the federal rules have been amended to require that grand jury testimony be recorded, Rule 6(e), F.R.Cr.P. (1979), and the same situation is true in many states, we have found no case holding that the failure to do so is a violation of due process. The appropriate response to this contention by Henni-gan is summarized in United States v. Martel, 17 F.R.D. 326, 329 (N.D.N.Y.1954), appeal dismissed sub nom United States v. Caiola, 222 F.2d 369 (2nd Cir.1955):

“The moving parties’ argument is one that may better be addressed to Congress, which has in the past and may in the future legislate as to the subject matter involved in this motion. The need for stenographic reports of grand jury proceedings has been the subject of discussion. The requirement for same must be based in the statute. This court may not legislate.” (Citations omitted.)

Rule 18, W.R.Cr.P., permits the inspection and copying of the transcript of grand jury testimony of the defendant or the testimony of a witness after he has testified, if the testimony was recorded. This provision satisfies any due process requirements and is in accord with what other states and the federal courts have required in determining when inspection of grand jury testimony should be permitted. Hennigan made no effort to demonstrate any particular need to obtain inspection of the grand jury minutes. Bary v. United States, 292 F.2d 53 (10th Cir.1961); cases cited in Annot., 20 A.L.R.3d 7 (1968 & Supp.1986). Even under the amended federal rules, the defendant need not be given access to grand jury testimony for the mere purpose of a fishing expedition or an effort to obtain discovery. See cases cited in Annot., 20 A.L.R.3d 7 (1968) and 3 A.L.R.Fed. 29 (1971).

Hennigan also urges that the failure to record the proceedings and the failure to permit him to inspect any proceedings which were recorded denied him a right of discovery afforded through preliminary hearing. As we discuss later, his argument is without merit. A preliminary hearing is not conducted for purposes of discovery but is designed to determine probable cause. Wilson v. State, supra. We understand that the preliminary hearing may provide some opportunity for discovery, but that is not mandated by the constitutional requirement of due process, statute or rule. Weddle v. State, Wyo., 621 P.2d 231 (1980).

There is also an inconsistency in Henni-gan’s position. He claims that the failure to make a record of the grand jury proceedings has deprived him of the right to discovery in almost the same breath in which he claims that the indictment was based wholly on hearsay. Both could not be true. Certainly, the acceptance of the assumption that this indictment was based upon hearsay testimony makes clear the proposition that no prejudice could attach with respect to the failure to report the proceedings, as there would have been no statement available of a witness who testified at the trial. Instead, it would appear that had he pursued discovery from the information in the prosecutor’s file, Hennigan would have obtained substantially the same information that was available to the grand jury.

To a similar contention, Judge Learned Hand commented:

“ * * * Under our criminal procedure the accused has every advantage. While the prosecution is held rigidly to the charge, he need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is at least fair doubt in the minds of any one of the twelve. Why in addition he should in advance have the whole evidence against him to pick over at his leisure, and make his defense, fairly or foully, I have never been able to see. No doubt grand juries err and indictments are calamities to honest men, but we must work with human beings and we can correct such errors only at too large a price. Our dangers do not lie in too little tenderness to the accused. Our procedure has been haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime.” United States v. Garsson, 291 F. 646, 649 (D.C.N.Y.1923).

The discovery rules for criminal cases in Wyoming satisfy the demands for due process. Hennigan was entitled to pursue the discovery available under such rules, but the fact that he was not permitted to expand upon those rights by being afforded a preliminary examination does not deprive him of due process. He is not entitled to more than the rules provide.

This contention, in addition to the assertion of deprivation of discovery, assumes that Hennigan would be entitled to a review of the grand jury proceedings for their sufficiency and propriety. We have found no case in which a court has held it to be proper, absent statutory authority, to review the sufficiency of the evidence in a grand jury proceeding, and several precedents advise against such practice. E.g., Costello v. United States, supra; State v. Jacobson, 22 Ariz.App. 128, 524 P.2d 962 (1974); State v. Reese, 91 N.M. 76, 570 P.2d 614 (1977).

In Wyoming, the legislature specifically has restricted the court’s authority to review a grand jury proceeding. Section 1-27-125, W.S.1977, a part of the statutory fabric of the grand jury in Wyoming since 1876, provides in pertinent part:

“Habeas Corpus is not permissible to question the correctness of the action of a grand jury in finding a bill of indictment, * * * when acting within their jurisdiction and in a lawful manner.”

In In re McDonald, 4 Wyo. 150, 33 P. 18, 22 (1893), this court commented on this statute and said:

“ * * * ‘Manner’ has reference to the method or mode of acting, more than to the degree of perfection or correctness in the conclusion or results arrived at.’'

It follows that the accuracy or sufficiency of the grand jury conclusions are not subject to review in a habeas corpus proceeding. The only question which could be raised is whether the grand jury acted in a lawful manner and within its jurisdiction. Hennigan, of course, did not pursue that remedy. Yet, that would have been an appropriate attack to pursue the contentions that are present in Hennigan’s arguments because the efficacy of the indictment is to require a defendant to answer to criminal charges in front of a petit jury and to justify restraint of liberty pending trial.

Wisdom is found in not providing a method for reviewing grand jury proceedings for sufficiency of the evidence prior to trial. Early decisions by this court quoted from W.S. Church in his work, Habeas Corpus. His treatise points out that a review of the sufficiency of the evidence pri- or to trial usurps the province of the jury because the court would be reviewing the same evidence that a trial jury presumably would be hearing at a later time.

“ * * * The question of guilt or innocence, therefore, should not be tried by the court or judge after indictment and upon habeas corpus; though the prisoner may be able to prove his innocence, he must abide his trial by jury.” W. Church, Habeas Corpus § 244 at 344 (2d ed. 1893).

The Supreme Court of the United States also has spoken to the problems created by review of grand jury evidence prior to trial.

“ * * * If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits the defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment.” Costello v. United States, supra, 350 U.S. at 363, 76 S.Ct. at 408-409.

In a similar vein, Church concluded:

“ * * * [Establish the principle that inquiry may extend beyond the indictment, and where will the range of inquiry cease?” W. Church, Habeas Corpus, supra, at 344.

While legislation in other states permits the courts to test the sufficiency of evidence presented before a grand jury, the legislature of this state, in its wisdom, has limited inquiry by courts to those areas that affect the manner of the proceedings or the jurisdiction to act. We accept this legislative limitation and will go no further of our own accord. See Maldonado v. State, 93 N.M. 670, 604 P.2d 363 (1979).

It is no more proper, in the absence of legislative authority or court rule, to review the sufficiency of the evidence supporting an indictment after a petit jury has returned a finding of guilty under the standard of proof beyond a reasonable doubt than it is after a plea of guilty by the defendant. United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986); Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). In holding that even though error in the grand jury proceeding which may have required dismissal of the indictment prior to trial was present, the Supreme Court of the United States declared that it was inappropriate to dismiss the indictment after trial and a jury verdict of guilty.

“* * * The error * * * in these cases had the theoretical potential to affect the grand jury’s determination whether to indict these particular defendants for the offense with which they were charged. But the petite jury’s subsequent guilty verdict not only means that there was probable cause to believe that the defendants were guilty as charged, but that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury’s verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.” United States v. Mechanik, supra, 475 U.S. at 70, 106 S.Ct. at 941-42.

Our holding, which prevents any inquiry into the sufficiency of the evidence supporting a grand jury indictment, is soundly based. A finding of probable cause serves only to bind the defendant over for trial; conversely, the return of a “no bill” by a grand jury does not acquit the defendant because no jeopardy has attached at that stage of the proceedings. Wilson v. State, supra. The same charge could be presented to a different grand jury with either the same or additional evidence. If the grand jury finds probable cause, then the defendant is brought to trial, and he has his constitutionally guaranteed day in court. At that juncture, the evidence is tested by the standard of guilt beyond a reasonable doubt, the highest standard recognized in

our system of jurisprudence. “The acid test of their actions [the findings of the grand jury], however, will come when the petit jury renders its verdict upon the charges they have brought.” Bartram v. State, 33 Md.App. 115, 364 A.2d 1119,1157 (1976), aff'd 280 Md. 616, 374 A.2d 1144 (1977). Any additional evaluation of the evidence presented before the grand jury prior to trial does not provide any significant protection of the defendant’s rights so as to justify the judicial and economic waste that it would require. Costello v. United States, supra.

“ * * * [T]he greatest safeguard to the liberty of the accused is the petit jury and the rules governing its determination of a defendant’s guilt or innocence.” Silverthorne v. United States, supra, 400 F.2d at 634.

Our holding foreclosing any review of the sufficiency of the evidence to support a grand jury indictment is also consistent with prior holdings of this court relating to possible claims of error in the preliminary stage and the effect of such error on a pleading or finding of guilt. Commenting on Coleman v. Alabama, supra, and Gerstein v. Pugh, supra, we said in Thomas v. Justice Court of Washakie County, 538 P.2d at 49, n. 7:

“If we correctly interpret these decisions, the effect [of] whether a proper preliminary examination was had or whether it was properly conducted is unimportant in considering on appeal the legality of the conviction of the defendant. This appears to be the position taken by this court in State v. Spears, 76 Wyo. 82, 300 P.2d 551 (1956), and State v. Vines, 49 Wyo. 212, 54 P.2d 826 (1936).”

Similarly, we have stated that a defendant who pleads guilty cannot raise constitutional deprivations on appeal which do not reach the jurisdiction of the court. Vallo v. State, Wyo., 726 P.2d 1045 (1986). The issue is also like the question of the legality of an arrest warrant in Wyoming; it affects the lawfulness of the taking into custody but has no impact upon the question of guilt or innocence. Crouse v. State, Wyo., 384 P.2d 321 (1963).

Fashioning an appropriate remedy for any harm arising out of an error in the preliminary stage that did not have any effect upon the fairness of the trial before the petit jury, after a verdict of guilty has been returned, would be difficult, if not impossible. It could not warrant a reversal of the conviction. United States v. Mechanik, supra; Arcuri v. United States, supra. If the defect is brought to light prior to trial, that problem is not present. For example, the defendant may challenge a defect in the jurisdiction of the grand jury by habeas corpus prior to trial. Section 1-27-125, W.S.1977; United States v. Taylor, supra. It is appropriate that the defendant be permitted to test the jurisdiction prior to trial before a petit jury, and if a record of the grand jury proceeding exists, he should be allowed access to it upon a showing of need and a demonstration of materiality to his defense. That opportunity, however, does not justify a fishing expedition in search of possible jurisdictional defects because there is a strong presumption of regularity in grand jury proceedings and particular irregularities must be alleged. United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546 (1943).

In the absence of a record, Rule 606(b), W.R.E., permits a member of a grand jury to answer questions with respect to whether extraneous prejudicial information improperly was brought to the jury’s attention or whether any outside influence improperly was brought to bear upon a juror. That rule, however, forecloses testimony by a juror into the validity of an indictment with respect to: any matter or statement occurring during the course of the jury’s deliberations; the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent or dissent from the indictment; or his mental processes in connection therewith. Logic dictates that a re-evaluation of the sufficiency of the evidence to justify an indictment infringes upon the protected prerogatives of the grand jury.

In his next argument, Hennigan complains that the number of indictments and the individual counts found in a relatively short period of time support an inference of rubber stamping. We reiterate the strong presumption of regularity in grand jury proceedings. United States v. Johnson, supra. Hennigan and others assert that the return of 61 indictments encompassing 327 counts in three days overcomes that presumption. We note that these cases were not complex, and it would seem that the grand jury might have relied upon the same evidence in addressing cases involving several defendants. Given these circumstances, we cannot say that the grand jury did not properly perform their assigned tasks in the time available; we will presume that they did.

As a final assertion of procedural error, Hennigan contends that he was deprived of his right to discovery. Hennigan’s assumption that there is a constitutional right to discovery in a criminal case is contrary to the rule articulated by the Supreme Court of the United States. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 5 L.Ed.2d 30 (1977), quoted in Fitzgerald v. State, Wyo., 601 P.2d 1015 (1979). Hennigan also proposes that the purpose of a preliminary hearing is to offer an opportunity for discovery, a position that previously has been refuted by decisions of this court. E.g., Wilson v. State, supra; Weddle v. State, supra.

“ ‘From appellant’s discussion * * * it seems that his main purpose in asking for a preliminary examination [or access to the grand jury testimony] was to obtain knowledge of the facts the state expected to prove at the trial. He was really seeking a disclosure of the state’s evidence in order that he might prepare his defense. It is clear that under out statute a preliminary examination is not for that purpose. * * * There seems to be no rule of the common law or statute that gives a defendant the right before trial to pry into the state’s case by obtaining a disclosure of its evidence, though there is authority for the view that the trial court has at least a discretionary power to permit the defendant to inspect documents or chattels for the purpose of obtaining information that will enable him to make a defense.’ ” State v. Spears, supra, 300 P.2d at 556, quoting from State v. Vines, supra, 49 Wyo. at 221, 223, 54 P.2d at 828, 829.

Hennigan also argues that a denial of due process occurred because he was forced to plead to charges with the only available information being the date and the quotation from the statute he allegedly violated. Hennigan chose not to file a motion for a bill of particulars. If he needed more information in order to make a plea, the bill of particulars is the procedural tool which accomplishes that purpose. Hawkes v. State, Wyo., 626 P.2d 1041 (1981). Our rules of discovery in Wyoming go beyond what is constitutionally necessary, and if Hennigan’s rights to discovery did not afford him protection, it must be attributed to the fact that he did not invoke them. Otherwise, the discovery rules would be inadequate in a constitutional context. If that inadequacy were present, then the appropriate redress would be by statute or rule and not in an argument on appeal in a case in which available discovery was not utilized.

Our careful review of Hennigan’s contentions and this record convinces us that the process and procedure followed in the grand jury proceedings resulting in his indictment did not deny Hennigan due process of law.

We next address Hennigan’s argument that he was denied equal protection of the law. Hennigan fails to offer any support for this argument. He relies on Hawkins v. Superior Court of City and County of San Francisco, 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916 (1978), in which the Supreme Court of California held that prosecution by indictment and the denial of a post-indictment preliminary hearing resulted in a denial of equal protection under the provisions of the constitution of the state of California. That decision was premised upon state constitutional grounds not federal constitutional grounds, and no case has been discovered by either the appellant or this court which suggests that the denial of a preliminary hearing by virtue of presenting the case to a grand jury is a violation of the equal protection clause of the federal constitution.

Since Hennigan cites no federal authority for his constitutional proposition, we must assume that his argument is premised on state not federal constitutional grounds. See State v. Sisneros, 137 Ariz. 323, 670 P.2d 721 (1983). We presume, then, that Hennigan’s goal is to persuade this court to adopt the rationale of Hawkins v. Superior Court of City and County of San Francisco, supra, and conclude that the denial of a preliminary hearing violated his right to equal protection under Wyoming law.

The concept of equal protection is addressed in three provisions of the Constitution of the State of Wyoming:

“Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex or any circumstance or condition whatsoever other than individual incompetency, or unworthiness duly ascertained by a court of competent jurisdiction.” Wyo. Const., Art. I, § 3.

“In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.” Wyo. Const., Art. I, § 2.

“All laws of a general nature shall have a uniform operation.” Wyo. Const., Art. I, § 34.

The argument was made in In re Boul-ter, supra, 5 Wyo. at 335, 40 P. at 521, that Art. 1, § 34 made it “unjust and unconstitutional to subject one man to an accusation by means of an information and another by an indictment found and returned by a grand jury, at the caprice of the prosecuting officer.” This court responded that the law was uniform because it required a finding of probable cause either by “a grand jury upon sworn testimony or by a magistrate upon evidence publicly given and in the presence of the accused, with a right on his part to cross-examination and to produce witnesses in his own behalf”. In re Boulter, supra, 5 Wyo. at 337, 40 P. at 522. The court went on to say:

“ * * * It seems clear to us that the legislature had the right to retain the grand jury system, and to provide for accusation by information as well as by indictment, under the authority given by constitutional permission to ‘change, regulate, or abolish the grand jury system.’ * * * The provision for the dual system of accusation is not fatal to the act.” In re Boulter, supra, 5 Wyo. at 338, 40 P. at 523.

The authorized dual charging system in Wyoming does not violate Art. 1, §§ 2 and 3 of the Constitution of the State of Wyoming any more than it offends Art. 1, § 34 of the Constitution of the State of Wyoming. The perceived advantages which flow from the procedure involving a complaint and preliminary examination followed by an information do not justify a conclusion that Hennigan has been denied equal protection of the law because the grand jury was used. Our law provides for discretionary treatment at several stages in the prosecution. The exercise of that discretion cannot be found to work a denial of equal protection solely because of disparate treatment unless the denial is based upon an identifiable class. As we noted in another context, in Cavanagh v. State, Wyo., 505 P.2d 311, 312 (1973):

“ * * * [Njeither the Fourteenth Amendment of the United States Constitution nor Art. 1, § 2, Wyo. Const., requires exact equality. Only arbitrary and invidious discrimination are condemned, neither of which are present in this case.”

In our judgment, the rationale found in State v. Clark, supra, satisfactorily refutes Hawkins v. Superior Court of City and County of San Francisco, supra. The Oregon court there held that a statute which justified a defendant being charged either by indictment or information did not deny equal protection, despite the fact that the procedures afforded through the preliminary hearing were unquestionably potentially important to the defendant and offered important advantages over prosecution by indictment. The court pointed out that there are two kinds of equal protection arguments: first, where a distinction of class exists which is created by law, in such instances an equal protection argument usually fails; second, in the instance of a distinction of class created by a separate condition which results in disparate treatment in the law apart from the law itself, such a circumstance serves as a successful premise for an equal protection argument. The Oregon court pointed out that the defendant’s argument concerning preliminary hearings belongs in the first class, that is, he was denied equal protection of the law simply because the law provided for two alternative treatments and not in the second class because of some characteristic applicable to the defendant that was apart from the law. In fact, no class can be shown until the prosecutor exercises the discretion which the law affords.

“ * * * But these defendants do not exist as categories or classes with distinguishing characteristics before and apart from a prosecutor’s decision how to charge one, or some, or all defendants. Aside from the manner in which the decision is made, [citation omitted] defendants charged under either procedure are ‘classes’ only as an effect of the dual procedural scheme itself.” State v. Clark, supra, 630 P.2d at 818.

See also, State v. Cisneros, supra; People v. District Court for Second Judicial District, Colo., 610 P.2d 490 (1980), also rejecting the Hawkins rationale.

Furthermore, the dissent in Hawkins v. Superior Court of City and County of San Francisco, supra, is well taken. The California constitution, like the constitution in Wyoming, gave the legislature the power to alter or abolish the grand jury procedure. As the dissent noted, if the system is to be abolished, it should be accomplished by the legislature enacting the apparent will of the people rather than by court decision. Hennigan’s plea for reform of the grand jury system is addressed to the wrong forum. We do not discuss Hen-nigan’s arguments concerning disparity of treatment beyond that which we have said in discussing his claimed denial of due process.

The second issue urged by Henni-gan is that the grand jury was impaneled improperly, and for that reason, it was without jurisdiction to return an indictment. This challenge is premised upon the contention that there was no finding of necessity by the district court with respect to impaneling a grand jury. Hennigan argues that this finding is required by § 7-5-102, W.S.1977, which provides in pertinent part:

“Whenever in the opinion of the district judge a grand jury be necessary he must make an order directing a grand jury to be drawn and summoned to attend before the court.”

Hennigan argues that, since the order directing the impaneling of this grand jury does not contain a sufficient statement of facts or even cite this statute, the court did not make the required finding of necessity. Our analysis of the statute leads us to the conclusion that a formal finding of necessity is not necessary to impanel a grand jury pursuant to § 7-5-102, W.S.1977. The statute grants authority to the district court to call a grand jury in its discretion if the court believes one is necessary.

This statute was adopted in its initial form in 1899. It would appear that the purpose was to confer authority on the district court to impanel a grand jury when the regular convening of the grand jury, as known at common law, was no longer necessary because of the adoption of the alternative form of prosecution by information. In re Wright, supra. The general rule is that the legislature may determine the proper circumstances for the summoning and impaneling of a grand jury.

“No restraint has been imposed by the constitution upon the power of the legislature to determine at what time, under what circumstances and in what manner, a grand jury may be summoned, but the matter has been left entirely to the discretion of the legislature.” People v. Grizzel, 382 Ill. 11, 46 N.E.2d 78, 82 (1943).

In Wyoming, the legislature has extended the authority to impanel a grand jury to the district court, and that authority is available whenever the district court deems it necessary to impanel a grand jury.

After examining the history of this statute, it is clear that the word “necessary” does not imply any specific finding that calling the grand jury is necessary. That interpretation would have been foreign to the common law and is inconsistent with the discretionary authority found in the statute. No case has been found from other jurisdictions which requires that a court make a finding of necessity even though the use of the word “necessary” appears in similar statutes. The district court stated that the grand jury was necessary, and that is sufficient. Pinn v. State, 107 Neb. 417, 186 N.W. 544 (1922). Further, the district court did not abuse its discretion in calling the grand jury. The generally accepted rule is that the district court need not take evidence or seek advice concerning the propriety of calling a grand jury; such inherent authority is available at its discretion. Williams v. People, 46 Colo. 183, 103 P. 298 (1909). There is nothing in the record to indicate any abuse of discretion in the district court’s exercise of its power to impanel a grand jury. Cf. State ex rel. Woodahl v. District Court of First Judicial District in and for Lewis and Clark County, 166 Mont. 31, 530 P.2d 780 (1975).

Hennigan then insists that the indictment should be dismissed because the foreman of the grand jury did not endorse the words “A True Bill” on the indictment. This argument relies upon the language of § 7-5-106, W.S.1977, to the effect:

“Nine (9) of the grand jury must concur in the finding of an indictment. When so found the foreman of the grand jury shall endorse upon such indictment the words, ‘A True Bill,’ and shall subscribe his name thereto.”

The words “A True Bill” were typed upon the indictment returned by the grand jury rather than being personally endorsed by the foreman. Each indictment did contain the signature of the foreman.

Again Hennigan chooses to go “bare” in terms of his reliance upon any authority. The authorities we found refute his contentions. In Frisbie v. United States, 157 U.S. 160, 15 S.Ct. 586, 39 L.Ed. 657 (1895), the Supreme Court of the United States held that the failure to endorse the words “A True Bill” and the failure of the foreman to sign the indictment did not require that it be set aside. The court there explained that the formality of the words “A True Bill” once played an important role and possibly was the only evidence of the grand jury’s determination. This formality is no longer required unless it be by statute.

At common law, the words “A True Bill” on the indictment denoted probable cause had been found. Conversely, if there was no finding of probable cause, the indictment was returned with the word “ignoramus.” Frisbie v. United States, supra. In that context, the significance of the words “A True Bill” was to furnish evidence of the finding of probable cause by the grand jurors. Other evidence indicating that decision is thus acceptable in the absence of some requirement of strict compliance with the statute. Kirkland v. State, 86 Fla. 64, 97 So. 502 (1923).

The evidence found in this record is that the indictment was returned in open court in the presence of all jurors; the foreman personally signed the verdict; and the words “A True Bill” were contained in each of the indictments. Strict compliance with the statute is not necessary, and this state of facts results in a clear manifestation that the grand jury found probable cause. No possible prejudice to Hennigan can be discerned from the failure to have the words “A True Bill” endorsed personally by the foreman on the indictment. See Glosser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, reh. denied sub nom Kretske v. United States, 315 U.S. 827, 62 S.Ct. 629, 86 L.Ed. 1222 (1942) (failure to recite indictment in open court was not sufficient to make it defective).

Lastly, Rule 9, W.R.Cr.P., is pertinent and controlling in this case. It provides:

“ * * * The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission or any other defect or imperfection which does not tend to prejudice any substantial right of the defendant upon the merits or to mislead the defendant to his prejudice shall not be grounds for dismissal of the indictment or information or for reversal of a conviction.” (Emphasis added.)

The language of this rule manifests the spirit of the law not to elevate form over substance. The thrust of Hennigan’s argument is to make form paramount, and in the light of a jury’s verdict of guilty, measured by the standard of guilt beyond a reasonable doubt, it would be ludicrous to vacate his conviction for this sort of hyper-technical reason.

The last issue raised by Hennigan essentially is a reiteration of his due process and equal protection claims. Hennigan, in effect, requests that this court adopt a presumption that these indictments failed to manifest a reliable determination of probable cause and invites us to search the record for some possible violation. That presumption is contrary to the applicable one. United States v. Johnson, supra. It also is inconsistent with the finding of guilt beyond a reasonable doubt by the petit jury. United States v. Mechanik, supra. Hennigan’s burden is to identify some specific violation of the grand jury procedure or some defect reaching its jurisdiction. It is not appropriate for this court to examine the record to seek out some possible violation that in all probability is a phantom. We will not undertake a review of the record to search for the figments of Henni-gan’s imagination. See United States v. Smyth, supra.

We have given careful and lengthy consideration to Hennigan’s claims because they are asserted by a number of defendants indicted by the same grand jury. We are satisfied that there was no abuse of the grand jury process; no violation of Henni-gan’s constitutional rights; and no infringement upon his right to a fair trial, the product of which was that he was found guilty beyond a reasonable doubt. The judgment and sentence is affirmed.

MACY, J., filed a concurring opinion. URBIGKIT, J., filed a dissenting opinion.

1 . Section 35-7-103 l(a)(ii), W.S.1977, provides: "(a) Except as authorized by this act [§§ 35-7-1001 to 35-7-1055], it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this subsection with respect to:

******

"(ii) Any other controlled substance classified in Schedule I, II or III, is guilty of a crime and upon conviction may be imprisoned for not more than ten (10) years, fined not more than ten thousand dollars ($10,000.00), or both.”

Section 35-7-1014(d), W.S.1977, includes marihuana in the controlled substances classified in Schedule I.

2 . Art. 1, § 13 of the Constitution of the State of Wyoming provides as follows:

"Until otherwise provided by law, no person shall, for a felony, be proceeded against criminally, otherwise than by indictment, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger."

3 . Amendment V to the Constitution of the United States provides in pertinent part as follows:

"No person shall be held to an answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; * # * »