State v. Edwards

• Citation: 89 R.I. 378,153 A.2d 153
• Decision Date: 10 July 1959
• Docket Number: No. 9807,9807
• Parties: STATE v. Elmer L. EDWARDS et al. Ex.
• Court: United States State Supreme Court of Rhode Island

Page 153

153 A.2d 153

89 R.I. 378

STATE v. Elmer L. EDWARDS et al.

Ex. No. 9807.

Supreme Court of Rhode Island.

July 10, 1959.

J. Joseph Nugent, Jr., Atty. Gen., Raymond J. Pettine, Asst. Atty. Gen., for the State.

Aram A. Arabian, William T. Kanelos, Providence, for defendants.

PAOLINO, Justice.

This is an indictment for conspiracy to violate the gambling laws. After a trial before a justice of the superior court sitting with a jury, two of the defendants were found guilty and their motion for a new trial was denied. The case is before us on their bill of exceptions to such denial and to numerous other rulings made before and during the trial.

The indictment charges that Elmer L. Edwards, Zigmund Micek and Vartan Hovanesian on October 16, 1953, and on divers other dates between August 1 and October 17, 1953, at Pawtucket in the county of Providence, 'did unlawfully contrive, confederate and conspire together to commit a criminal and unlawful act, to wit, to engage in bookmaking and to record and register, and did have recorded and registered, bets and wagers upon the results of contests of skill, speed and power of endurance of horses, for gain and reward in money from that bet or wagered on such result, in violation of Chapter 612, Section 35 of the General Laws of Rhode Island, 1938.' The indictment was found by a grand jury attending the superior court sitting at Providence for the counties of Providence and Bristol. The grand jury included three jurors drawn from Bristol county. The remaining jurors were drawn from Providence county.

On the day of the arraignment of the three defendants the state nol-prossed the indictment against Elmer L. Edwards and proceeded against the other two defendants. Thereafter before trial the remaining defendants filed fourteen pleas in abatement to the indictment on the ground that the grand jury were illegally constituted because of the presence thereon of the jurors from Bristol county and also because certain other jurors were not drawn in strict accordance with the pertinent statute. They also filed a motion to quash the indictment. The state demurred to some of the pleas and replied to the others. The trial justice sustained the demurrer to certain pleas, overruled the other pleas in abatement, and denied the motion to quash.

The first plea in abatement, as amended by the thirteenth plea, alleges the presence on the panel of three inhabitants from Bristol county, and challenges the constitutionality of secs. 11, 14, 18, 29 and 35 of chap. 700 of Public Laws of 1939, under which provisions the three Bristol county residents were authorized to serve as grand jurors. The defendants contend that the presence on the panel of individuals residing in another county violates the rights secured to them by secs. 7 and 10 of article I of our state constitution; that the statute authorizing the same is therefore unconstitutional; and that consequently a grand jury so constituted for Providence county is illegal and the indictment returned thereby is void.

The defendants argue that the only legal grand jury in this state is a common-law grand jury. They base such contention on Opinion to the Governor, 62 R.I. 200, 4 A.2d 487, 121 A.L.R. 806. In that opinion the court advised the governor in substance that secs. 7, 10 and 15 of article I of our state constitution constitute the essential guarantees of an accused, in certain cases, to a proper indictment by a grand jury, and to a trial by a petit jury which shall be inviolate; that sec. 7 secures to every person who might be accused of a serious crime the same protection as had been provided by the common law, through the same kind of a grand jury which was traditional at common law and functioning in substantially the same way; that in our constitution there is no provision giving to the general assembly power to change the character and functions of the grand jury as they had been established at common law; and that the legislature in this state is therefore without power to change the character and functions of the grand jury as so established.

The defendants next contend that at common law a grand jury consists of only the inhabitants of the county for which they are sworn to inquire and in which the crime they are to investigate were committed. In support of their contention defendants cite 2 Wharton, Criminal Procedure (10th ed.) § 1279, p. 1740, other text writers, and decisions from other jurisdictions. This same issue was raised but not passed upon in State v. Muldoon, 67 R.I. 80, 20 A.2d 687, and State v. Pryharski, 83 R.I. 274, 115 A.2d 529. It is well settled in this state that if one member of a grand jury is not qualified when drawn, the indictment is subject to a plea in abatement and will be quashed. State v. Davis, 12 R.I. 492; State v. Muldoon, supra.

The instant grand jury was called to attend the superior court sitting at Providence for the counties of Providence and Bristol in accordance with G.L.1938, chap. 498, § 2, as amended by P.L.1939, chap. 704, now G.L.1956, § 8-7-2. The applicable portion of § 2 provides: 'The superior court shall hold its sessions every year at the times and places following, to wit: (a) at Providence, within and for the counties of Providence and Bristol * * *.' In State v. Pryharski, supra, 83 R.I. at page 277, 115 A.2d at page 530, the court construed this language to imply that both counties are to be treated as a unit and that in criminal matters the statute authorizes the impaneling of one grand jury for both counties composed of jurors from both to inquire into crimes alleged to have been committed in either county. No constitutional question was raised in that case. In our opinion the court's construction in the case at bar was proper and we shall treat the instant issue accordingly.

It is undoubtedly true that in England the common-law grand jury consisted only of inhabitants of the county for which it was sworn to inquire. But it is also true that there was no part of England which was not within some county and that the grand jury was summoned and returned by the sheriff to each session of the criminal court sitting within his county. But there is no provision in our state constitution requiring the establishment, existence or continuance of counties. Counties in Rhode Island are creatures of the legislature.

The defendants concede that the legislature has the power to combine two or more counties or to abolish all of them. But they contend that if the legislature exercises this power by combining two or more counties without abolishing the geographical or territorial lines between such counties, it cannot constitutionally provide that residents of one of such counties can serve on a grand jury to inquire into crimes committed in the other county so combined. They base their argument on the ground that such a grand jury is not a common-law grand jury, since at common law residence in the county wherein the offense is committed is a prerequisite for qualification for such service. The defendants' contention rests entirely upon the meaning of the word 'county.' The correctness of their argument in turn depends upon whether county means the geographical lines of a political subdivision or the territorial lines of the jurisdiction of a grand jury.

At common law a grand jury was an appendage of the court under the supervision of which it was impaneled, having no existence aside from the court which called it into existence and upon which it was attending. 24 Am.Jur., Grand Jury, § 2, p. 832. In our opinion the term 'county' is used to define the territorial limits of the jurisdiction of a grand jury, and since it is merely an appendage of the court for which it is summoned and authorized to inquire, its jurisdiction may be made coextensive with that of the court's jurisdiction and the territory over which such jurisdiction extends, and not necessarily confined to the geographical lines of any county. General Laws 1938, chap. 506, § 37, now G.L.1956, § 12-11-2, provides in part: 'The grand jury shall attend the superior court at Providence for the counties of Providence and Bristol * * *.' It is clear that the legislature by the enactment of § 37 expressly provided that the jurisdiction of the grand jury would be coextensive with that of the court when sitting for those counties.

It thus appears that for jurisdictional purposes in certain criminal matters the legislature combined the two counties into a single unit even though it permitted the two counties to retain their separate names and their geographical lines for other purposes. Since the jurisdiction of the superior court includes geographically both counties, and since the jurisdiction of the grand jury is coextensive with that of the court under whose supervision it is impaneled, it is our opinion that with respect to grand jury proceedings the combined counties are a 'county' within the meaning of the requirement at common law that all members of a grand jury must be residents of the county for which they are sworn to inquire. For these reasons there is no merit in defendants' contention that the statute which authorized the Bristol residents to serve on the instant grand jury is unconstitutional. Therefore the trial justice did not err in sustaining the state's demurrer to defendants' first plea in abatement.

The second plea, as amended by the fourteenth plea, alleges that the indictment was illegally returned because the attorney general and the grand jury permitted a court stenographer to be present during the examination of witnesses. The stenographer was present by virtue of the provisions of G.L.1938, chap. 503, § 3, as amended by P.L.1946, chap. 1668, now G.L.1956, § 8-5-6. That statute authorizes the use of a stenographer appointed by the court, under certain conditions therein described, to report stenographically the testimony given before a grand jury and to be present only during...