State v. Barker

• Decision Date: 17 November 1890
• Citation: 12 S.E. 115,107 N.C. 913
• Court: North Carolina Supreme Court
• Parties: State. v. Barker.

107 N.C. 913

12 S.E. 115

State.

v.Barker.

Supreme Court of North Carolina.

Nov. 17, 1890.

Grand Jury—Constitutional Law.

1..A grand jury had a well-understood meaning at the adoption of our declaration of rights, and one of its most essential features was that the concurrence of 12 of its members was necessary to the finding of a presentment or indictment.

2. An act of the legislature, making the concurrence of nine sufficient, is not authorized by the constitution of North Carolina.

(Syllabus by the Court.)

This was an indictment for perjury, tried before Meares, J., and a jury at the September term, 1890, of the criminal court of New Hanover county. The defendant pleaded in abatement to the indictment, and it was admitted by the state, that when the bill was found there were only 11 members of the grand jury present, the twelfth grand juror having been excused by the foreman on account of his being a brother-in-law of the prosecutrix. Under the act of assembly establishing the said court the number of the grand jury is fixed at 12, and it is provided that the concurrence of 9 of that body shall be sufficient to the finding of an indictment. Acts 1885, c. 63, § 18. His honor overruled the plea, and the defendant excepted. The trial proceeded, and there was a verdict of guilty. Other exceptions were taken to the rulings of the court in the course of the trial, but as they are not passed upon in the opinion it is unnecessary that they should be repeated.

S. V, Weill, for appellant.

The Attorney General, for the State.

Shepherd, J., (after stating the facts as above.) "No freeman shall be taken or imprisoned, or disseised or outlawed, orbanished or in any ways destroyed, nor will we pass upon him or commit him to prison unless by the legal judgment of his peers or unless by the law of the land." Such is the language of King John in the Magna Charta, which instrument was called by Sir Edward Coke "the charter of the liberties of the kingdom upon great reason because liberos tacit it makes the people free." "To have produced it, " says Sir James Macintosh, "to have preserved it, to have matured it, constituted the immortal claims of England upon the esteem of mankind." The particular provision which we have quoted, or its substance, is to be found in the federal and various state constitutions, and the great principles which it asserts are no less cherished in America than in the mother country. It is true that " the law of the land, " in respect to the trial of persons accused of crime, is not specifically defined, but it was so well understood in England, in reference to the necessity of an indictment in capital felonies, that Erskine, in his speech in 1784, in defense of the dean of St. Asaph, said, in the presence of the judges of the king's bench: " If a man were to commit a capital offense in the face of all the judges of England, their united authority could not put him upon his trial; they could file no complaint against him, even upon the records of the supreme criminal court, but could only commit him for safe custody, which is equally competent to every justice of the peace. The grand jury alone could arraign him, and in their discretion might likewise finally discharge him by throwing out the bill with the names of all your lordships as witnesses on the back of it." So jealous of their liberties, however, were our North Carolina ancestors that they were not content with adopting the foregoing provision, but they were careful to further insert in their declaration of rights a particular definition of the general words, and also to extend the privileges conferred to all "criminal charges" whatever. This they did by declaring " that no freeman shall be put to answer any criminal charge but by indictment, presentment, or impeachment. " In thus putting the construction of the general language beyond all controversy, they wrought wisely and well, as the supreme court of the United States, in Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. Rep. 111, has recently held that the seemingly equivalent words "due process of law, " in the fourteenth amendment of the constitution of the United States, did not deprive the state of California of the right to provide that a man could be put upon trial for his life upon "information" only. The declaration mentioned has always been a part of the fundamental law of North Carolina, and is to be found in our present constitution in its full vigor, and unaltered in any particular except as to petty offenses where the punishment cannot exceed a fine of $50, or a term of imprisonment for 30days; and even in these cases there is a right of appeal to the superior court, where they may be tried de novo. It is conceded that the words "presentment and indictment" imply the existence of a grand ju ry, and that the provision referred to should be read as if those words had been included. This being undoubtedly true, we are now to inquire whether, under the constitution, a bill of indictment can be found without the concurrence of at least 12 of the grand jurors. Judge Cooley, in his work on Constitutional Limitations, 60, says that "constitutions are to be construed in the light of the common law and of the fact that its rules are still in force. By this we do not mean that the common law is to control the constitution, or that the latter is to be warped and perverted in its meaning in order that no inroads, or as few as possible, may be made in the system of common-law rules, but only that for its definitions we are to draw from that great fountain, and that in judging what it means we are to keep in mind that it is not the beginning of law for the state, but that it assumes the existence of a well-understood system, which is still to remain in force, and be administered, but under such limitations and restrictions as that instrument inposes. "

We think it can hardly be questioned that when our first constitution was adopted in 1776 the mode of prosecution upon the indictment of a grand jury was "a Well-understood system" everywhere among the English-speaking people, and especially in respect to the number requisite to the finding of a bill. Indeed, there seems not a dissenting voice among the authorities that the concurrence of 12 of the grand jury was necessary, although it has frequently been held that that body may consist of any number from 12 to 23. Originally the body now called a " Gran 1 Jury" consisted of only 12 persons, and they were chosen...