State v. Kavanaugh.

• Decision Date: 16 May 1927
• Docket Number: No. 3115.,3115.
• Citation: 32 N.M. 404,258 P. 209
• Parties: STATEv.KAVANAUGH.
• Court: New Mexico Supreme Court

32 N.M. 404

258 P. 209

STATE

v.KAVANAUGH.

No. 3115.

Supreme Court of New Mexico.

May 16, 1927.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.

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.

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.

BICKLEY, J.

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:

“The following cases hold either that the changing of the practice from indictment to information; information to indictment; or changing the number of grand jurors, are merely changes of rules of procedure, and that as such they are subject to change and not substantive vested rights: Hallock v. United States (C. C. A.) 185 F. 417 (but see dissenting opinion of Judge Sanborn); Lybarger v. State, 2 Wash. 552, 27 P. 449, 1029; State v. Hoyt, 4 Wash. 818, 30 P. 1060;¹ In re Wright, 3 Wyo. 478, 27 P. 565, 13 L. R. A. 748, 31 Am. St. Rep. 94; People v. Campbell, 59 Cal. 243, 43 Am. Rep. 257; Sage v. State, 127 Ind. 15, 28 N. E. 667.

Again, it will be noted, in examining the cases which hold that such constitutional changes are not ex post facto as to crimes committed prior to the constitutional change, that the courts so holding have in all cases failed to recognize the definition of an ex post facto law heretofore cited and quoted by us as being one of the recognized definitions of an ex post facto law in the federal courts. They have attempted to limit their definitions of such acts as set out in the case of In re Wright, 3 Wyo. 478, 27 P. 565, 13 L. R. A. 748, 31 Am. St. Rep. 94. The court there limits its definition of ex post facto laws to the following:

(1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action.

(2) Every law that aggravates a crime or makes it greater than when it was committed.

(3) Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed.

(4) Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender.”

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:

“The subject of ex post facto laws was first considered by the Supreme Court of the United States in Calder v. Bull. While the judges delivered separate opinions the principal opinion seems to have been delivered by Mr. Justice Chase, whose definition of an ex post facto law, and whose classification of the subject, as well as his general comments thereon, have met the approval of the bench of the country for more than a century, and are as follows:

‘I shall endeavor to show what law is to be considered an ex post facto law, within the words and meaning of the prohibition in the federal Constitution. The prohibition, “That no State shall pass any ex post facto law,” necessarily requires some explanation; for, naked and without explanation, it is unintelligible, and means nothing. Literally, it is only, that a law shall not be passed concerning, and after the fact, or thing done, or action committed. I would ask, what fact; of what nature or kind; and by whom done? That Charles I, king of England, was beheaded; that Oliver Cromwell was protector of England; that Louis XVI, late king of France was guillotined; are all facts that have happened; but it would be nonsense to suppose, that the states were prohibited from making any law, after either of these events, and with reference thereto. The prohibition, in the letter, is not to pass any law concerning, and after the fact; but the plain and obvious meaning and intention of the prohibition is this: that the Legislatures of the several...