State v. Froiseth

• Decision Date: 01 January 1871
• Citation: State v. Froiseth, 16 Minn. 277 (Minn. 1871)
• Parties: STATE OF MINNESOTA v. JAMES E. FROISETH.
• Court: Minnesota Supreme Court

Page 277

16 Minn. 277

STATE OF MINNESOTA

v. JAMES E. FROISETH.

Supreme Court of Minnesota.

Certified from the court of common pleas, Ramsey county.

F. R. E. Cornell, Atty. Gen.

Henry J. Horn and H. H. Finley, for defendant.

McMILLAN, J.

The defendant was indicted in the court of common pleas of Ramsey county for the crime of extorting money.

After the indictment was filed, and before pleading, the defendant, by his attorney, moved to set aside the indictment because the grand jury was not charged by the court; that is to say, one C. L. Grant, one of the grand jury, was not present when his fellow grand jurymen were charged, and the said C. L. Grant has never been charged by the court.

It appears, by the stipulation of the county attorney and the attorney for the defendant, "that C. L. Grant, one of the grand jurors, who was present during the examination of the charge by the grand jury, and voted upon the finding of said indictment, was not present during the charge of the court to the other grand jurors, and was not charged by the court."

Upon this state of facts, the court below being of opinion that questions of law arise upon said motion to set aside the indictment, which are so important and doubtful as to require the decision of the supreme court, the defendant, expressly desiring and consenting thereto, ordered the case to be reported and certified to this court in pursuance of the statute.

There is nothing in the paper book to show the circumstances of the juror's absence, or why he was not present when the charge to the grand jury was delivered.

We must presume, nothing appearing to the contrary, that a competent grand jury was regularly impaneled, sworn, and charged by the court in accordance with the direction of the statute; that the juror Grant was one of the regular panel of grand jurors, and was duly sworn as a member of the grand jury. Whether he appeared and was sworn with the other members of the grand jury, and was absent during the charge, or whether, as is probably the case, he appeared and was sworn after the charge was delivered, does not appear; but it is perhaps immaterial which was the fact, for in either case there was without him, we must presume, a competent grand jury impaneled, sworn, and charged.

Section 21 of chapter 107 of the General Statutes provides that the court, "from the persons summoned to serve as grand jurors and appearing," shall appoint a foreman.

Section 22 is in the following words: "The grand jury shall then be sworn according to law, and if afterwards any grand juror appears, and is admitted as such, the same oath shall be administered to him."

Section 23 provides that "the grand jury, being impaneled and sworn, shall be charged by the court," and defines the character of the charge.

It is apparent from the terms of section 23 and the two preceding sections that the charge directed by section 23 is to be given at the organization of the grand jury, and there is no provision of the statute requiring the court to repeat the charge at any subsequent time.

If, then, not less than 16 grand jurors appear, and are impaneled, sworn, and charged by the court, a competent grand jury is organized. Gen. St. c. 107, §§ 1, 12.

The question then follows whether, subsequent to the charge, any other person of the regular panel can be admitted as a member of the grand jury, and, if so, whether he must be charged by the court.

There can be no doubt, it seems to us, that by the terms of section 22, above quoted, the court may admit an additional grand juror after a sufficient number of the panel have been sworn, and before the charge is given. We think, however, the provisions of section 22 do not limit the court in thus admitting an additional grand juror to a time after the swearing of the grand jury and before the charge, but embrace the entire period of their sessions as a grand jury. There is certainly no express limitation to this effect.

The language is: "If afterwards [that is, after the grand jury shall be sworn] any grand juror appears, and is admitted as such, the same oath shall be administered to him." The effect of the word "afterwards" is to render it necessary that the admission of the grand juror should be subsequent to the swearing of the grand jury; and if the legislature had intended to limit the period for the admission of the juror, it is fair to suppose they would have expressed that intention in appropriate terms. This intention cannot be inferred from the fact that it is followed immediately by section 23, which enacts that "the grand jury, being impaneled and sworn, shall be charged by the court," because the grand jury may be charged when but 16 grand jurors are impaneled and sworn, and the provisions of the statute thus be fully complied with; yet the provision under consideration clearly implies that if the additional juror is one of the regular panel, he must be additional to the number sufficient to constitute a grand jury already sworn. The first object in section 22 was to provide that the grand jury should be sworn, whether all appeared at the organization or some were added afterwards, not primarily to provide for additions to the grand jury after its organization; and as the provisions that the jury at its organization should be sworn, and also that those subsequently admitted should be sworn, are cognate, it was proper that both provisions should be embraced in one section; and as a sufficient organization of the grand jury must precede the charge, it was appropriate to place these sections in their present order.

But we think the provision in section 22 authorizing additional grand jurors to be admitted after the organization of the grand...