State v. Lawrence
| Decision Date | 20 May 1885 |
| Citation | 12 Or. 297,7 P. 116 |
| Parties | STATE v. LAWRENCE. |
| Court | Oregon Supreme Court |
Appeal from Multnomah county.
James K. Kelly, for appellant.
John M Gearin, Dist. Atty., for respondent.
By the late act of the legislature it is provided, in substance that the sheriff and clerk shall draw from the body of jurors a grand jury several days prior to the term of court.
The question presented is, does the act conflict with section 18 of the constitution, which provides that "the legislative assembly shall so provide that the most competent of the permanent citizens of the county shall be chosen for jurors, and out of the whole number in attendance at court seven shall be chosen by lot as grand jurors, five of whom must concur to find an indictment; but the legislative assembly may modify or abolish grand juries?" As the act necessarily selects the grand jury, not from the "jurors in attendance at the court," it is admitted to be in conflict with the provision cited, unless the power vested in the legislature by the latter clause--"may modify or abolish grand juries"--gives validity to the act. What is meant by the words "may modify *** grand juries?" In a general sense, to modify means to change or vary,--to qualify or reduce; and unless there is something in the context, or special usage, the words are to be taken in their plain, ordinary, and popular sense. A power given to modify or abolish implies the existence of the subject-matter to be modified or abolished. When exercised to modify, it does not destroy identity, but effects some change or qualification in form or qualities powers or duties, purposes or objects, of the subject -matter to be modified, without touching the mode of creation. The word implies no power to create or to bring into existence, but only the power to change or vary in some particular an already created or legally existing thing. For the existence of a grand jury the constitution has provided it must be chosen from the whole number of jurors in attendance at the court. It is this body, as thus constituted, the legislature may modify or abolish. If the power is not put forth to abolish, it may be exercised to modify it; but this cannot include the power to create or destroy it. The fact that it may be abolished or modified, proceeds from the assumption that its existence is already provided for, and furnishes the subject-matter upon which the legislative act is to operate.
It is to grand juries to which the word "modify" in the section relates, and to which the power it embodies must be applied, and not to the mode of selecting grand jurors, for which the constitution has provided; or, perhaps, to the grand jury system, and not to the mode of selecting individual grand jurors who compose the grand jury. These or this the legislature may modify in various ways, by limiting or regulating their powers, duties, qualifications, etc. The constitution, then, having prescribed that the grand jury shall be chosen from the jurors in attendance at the court, it would seem to be exclusive, and limit the legislative power in this regard. "Our act of assembly," said GIBSON, C.J., Philips v. Grutz, 2 Pen. & W. 417.
In Randall v. State, 16 Wis. 340, the court says: "It would be absurd to say that a member was in attendance upon the general assembly when it was not convened." The act of the legislature prescribing that the grand jury shall be drawn from jurors other than those in attendance at court, is in conflict with the provision of the constitution cited, and must yield to the paramount law. It is therefore void.
The next inquiry is whether the effect of this is to entitle the defendant to have the indictment quashed, and the judgment of conviction reversed. Although this question was not argued, it was evidently assumed as a consequence of the declared invalidity of the law. The press of other business and the necessity of an early decision of this matter on account of the public exigency, has denied us that opportunity for an investigation and consideration of this phase of the question which is desirable and necessary for a satisfactory solution. The proceeding here is direct and not collateral. The defendant was indicted by a grand jury chosen under a void law, to which he regularly excepted, and, as a consequence thereof, claims that the accusatory paper found against him by such a body of men is not an indictment, and that the judgment of conviction founded upon it cannot be sustained. In People v. Petrea, 92 N.Y. 135, the defendant was indicted by a grand jury selected under a void law. At the trial he filed a plea alleging the act to be unconstitutional, on the ground that it was a local act. The court declared the act to be void, but held that the objection to it was...
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State v. Keys
...the constitutionally mandated method of selecting grand jurors could not be raised after the defendant's plea), with State v. Lawrence , 12 Or. 297, 298, 7 P. 116 (1885) (setting aside the grand jury's indictment based on a timely objection to the manner in which the grand jurors were selec......
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State v. King
...the case to the Grand Jury, there exists good cause shown that this case be continued for thirty days * * *." In State v. Lawrence, 12 Or. 297, 300, 7 P. 116 (1885), relied on in State v. Gortmaker, 295 Or. 505, 509, 668 P.2d 354 (1983), the Supreme Court stated that, when a grand jury is n......
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State v. Gortmaker
...challenge. Defendant argues that ORS 135.510 does not apply to constitutional challenges to an indictment. We agree. In State v. Lawrence, 12 Or. 297, 7 P. 116 (1885), the defendant contended that the grand jury that indicted him was formed in violation of original Article VII, Section 18. ......
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Infanto v. Infanto
...or qualification in form or qualities, power or duties, purposes or objects, of the subject matter to be modified.' See State v. Lawrence, 12 Or. 297, 7 P. 116.' Since the divorce decree sought to be modified does not contain a support provision for petitioner the Family Court under 446(c) ......