State v. Kavanaugh
Decision Date | 16 May 1927 |
Docket Number | 3115. |
Citation | 258 P. 209,32 N.M. 404,1927 -NMSC- 038 |
Parties | STATE v. KAVANAUGH. |
Court | New Mexico Supreme Court |
Rehearing Denied with Modification July 25, 1927.
Syllabus by the Court.
The Constitution of New Mexico (section 14 of article 2) provided that "No person shall be held to answer for a capital felonious or infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the militia when in actual service in time of war or public danger." The statutes of New Mexico prior to the adoption of the Constitution and for a time thereafter provided that a grand jury should be composed of 21 persons and that 12 must concur in finding an indictment. Held, that the amendment to section 14, art. 2, of the Constitution, which took effect January 1, 1925 (see Laws 1923, p. 351), providing, among other things, that a grand jury should, unless otherwise provided by law, consist of 12 in number, and that of such number at least 8 must concur in finding an indictment, does not disparage any substantial or constitutional guaranty and is not ex post facto, therefore in applying to offenses committed prior to its adoption.
Appeal from District Court, San Miguel County; Armijo, Judge.
Juan D Kavanaugh was convicted of a crime, and he appeals. Affirmed.
D. J. Leahy, of East Las Vegas, and E. R. Wright, of Santa Fé, for appellant.
Fred E. Wilson, Atty. Gen., Robert C. Dow, Asst. Atty. Gen., for the State.
Rennehan & Gilbert, of Santa Fé, amicus curiæ.
Appellant was indicted and convicted of a crime.
Section 14 of article 2 of our Constitution prior to amendment provided:
"No person shall be held to answer for a capital, felonious, or infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the militia when in actual service in time of war or public danger."
The date of the commission of the crime charged was after the adoption of the New Mexico Constitution and prior to the amendment thereof, which took effect January 1, 1925 (see Laws 1923, p. 351), and provided that a grand jury should, until otherwise provided by law, consist of 12 in number, and that of such number, at least 8 must concur in finding an indictment.
Appellant has called our attention to the opinion of the Attorney General of New Mexico No. 882, construing the section of our Constitution, quoted supra, to mean a presentment or indictment by grand jury as known to the common law, and that it was not within the power of the Legislature to make grand juries of greater or less number than was permissible at common law. The Attorney General, however, went on to say:
"In many states it seems that by constitutional provision smaller grand juries are authorized, as in Iowa the Constitution provides for a grand jury of from 5 to 15; in Colorado, the Constitution limits the grand jury to 12; in Kentucky, the Constitution provides that the grand jury shall be 12; in Montana, the Constitution reduced the grand jury from 16 to 7; and in Texas the Constitution provides for a grand jury of 12."
It has been decided that the provision of the federal Constitution for "due process of law" does not require that a grand jury finding an indictment shall be composed, as at common law, of the common-law number of grand jurors. See Parker v. People, 13 Colo. 155, 21 P. 1120, 4 L. R. A. 803. The opinion in this case is based upon the decision of the United States Supreme Court in Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232, which decided that due process of law in criminal cases did not make any grand jury necessary but might be satisfied by information even in case of felony, and that the statute may modify the accusatory system between the two extremes of the common-law grand jury and prosecution by information. In this connection, see, also, Matter of Moran, 203 U.S. 96, 27 S.Ct. 25, 51 L.Ed. 105, where the court was considering the Fifth Amendment to the federal Constitution, which is in language identical with that of our Constitution (section 14, article 2) quoted supra. The court there said:
"The Fifth Amendment, requiring the presentment or indictment of a grand jury, does not take up unto itself the local law as to how the grand jury should be made up, and raise the latter to a constitutional requirement."
We do not understand that appellants urge that our constitutional amendment in question is repugnant to the Fifth Amendment to the federal Constitution. The exact point urged is that such amendment to section 14 of article 2 of our Constitution is an ex post facto law as applied to offenses committed prior to the adoption of such constitutional amendment.
We have been aided in our labor by able arguments. Counsel for appellant have shown a commendable spirit in citing the adjudicated cases touching upon this important question, regardless of whether they support appellant's contentions or not. Amicus curiæ in an able brief support the contentions of appellant.
Section 10 of article 1 of the federal Constitution provides:
"No state shall * * * pass any * * * ex post facto law."
We will assume, though not deciding, for the purpose of this consideration, that the provisions of the federal Constitution apply not only to the mere acts of the Legislature, but to changes in the fundamental law of the state.
Appellant says:
It is to be noted, however, that the state courts have generally followed and frequently cited the case of Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648, which is the leading federal case on the subject. 1 Watson on the Constitution, pp. 739-741, comments on this case and quotes therefrom as follows:
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