State v. Lyons

• Decision Date: 12 April 1939
• Court: Court of General Sessions of Delaware
• Parties: STATE v. GARRETT E. LYONS, et al

5 A.2d 495

40 Del. 77

STATE v. GARRETT E. LYONS, et al

Court of General Sessions of Delaware, New Castle County

April 12, 1939

Court of General Sessions for New Castle County, Indictment No. 52 January Term, 1939.

This indictment against seven named persons alleges a conspiracy to abet fraud in connection with the casting of votes under the absentee voting provisions of the election laws of the State of Delaware (Revised Code, 1935, Chapter 60, Article 5 Section 1945 et seq.) at the general election held on November 8, 1938.

The indictment consisted of two counts. The first was general in its terms and the second set out with particularity the acts alleged as constituting a violation of the law. The particulars of the indictment were not here set out as they were not involved in the determination of the matter. The defendants entered pleas of "not quilty," which were afterwards allowed to be withdrawn in order to test the validity of the indictment upon a motion to quash.

The indictment is quashed.

James R. Morford, Attorney-General, Clair J. Killoran and Thomas Herlihy, Jr., Deputy Attorneys-General, for the State.

Stewart Lynch and Warren Roberts for the defendants.

RODNEY and SPEAKMAN, J. J., sitting.

OPINION

SPEAKMAN, J.

The defendants have filed fourteen reasons in support of their motion to quash the indictment. In view of our conclusions we shall consider, in their order, but five of these reasons prefacing our discussion by the language of the reasons.

1. "That said purported indictment was not presented and returned by a legally constituted Grand Jury in that the Act of the General Assembly (Ch. 1, Vol. 37, Laws of Delaware) purporting to propose an amendment to the Constitution of Delaware changing and reducing the number of members of the Grand Jury for New Castle County, and the Act of the General Assembly (Ch. 3, Vol. 38, Laws of Delaware) agreeing to such proposed amendment are in conflict with Article II, Section 16 of the Constitution of the State of Delaware, and therefore void and without legal effect."

Article 1, Section 4 of the Constitution provides "Trial by jury shall be as heretofore."

In 1931 it was desired to amend the Constitution so as to reduce the number of Grand Juroros from the accustomed number of twenty-four to fifteen in New Castle County, and ten in each of the other counties. The provisions concerning amendments to the Constitution are found in Article 16.

It there appears that:

"Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives * * *." Section 1.

The section then provided that if two-thirds of each house agrees to the amendment it shall be so entered upon the respective Journals and shall be published by the Secretary of State three months before the next General Election, in at least three newspapers of each county. It further provided that if, in the General Assembly next after said General Election, the proposed amendment shall again be agreed to by two-thirds of all the members elected to each house, the said amendment shall become a part of the Constitution.

In 1931 an amendment to Article 1, Section 4 of the Constitution was proposed in the form of "An Act proposing an Amendment to Section 4 of Article 1 of the Constitution of the State of Delaware, relating to trial by jury." Chap. 1, Vol. 37, Laws of Delaware, p 3.

No question is raised as to the proper passage of the amendment, its publication by the Secretary of State in due and proper form, nor as to its subsequent final adoption in 1933. Chap. 3, Vol. 38, Laws of Delaware, p. 29.

The defendants contend that the action taken in amending the Constitution was violative of Article 2, Sec. 16 of the Constitution, which provides:

"No bill or joint resolution * * * shall embrace more than one subject, which shall be expressed in its title."

It is only necessary to observe that there is no requirement that a suggested Constitutional amendment shall be by "bill or joint resolution." It is only necessary that the amendment be "proposed" in either house of the General Assembly, and we are not at liberty to determine what particular form such proposal shall take.

Article 2, Section 16 of the Constitution, relied on by the defendants, has been repeatedly passed upon by the Courts. It has been uniformly held that the principal purpose of the provision is that the title of a bill after its introduction shall be sufficiently comprehensive to give the people, as well as members of the Legislature, fair and reasonable notice of the subject matter of the proposed legislation and to prevent deception by provisions of which the title gives no intimation. In re Cypress Farms Ditch, 7 W. W. Harr. (37 Del.) 71, 180 A. 536; State v. Ferschke, 25 Del. 477, 2 Boyce 477, 81 A. 401; Discount & Credit Corp. v. Ehrlich, 7 W. W. Harr. (37 Del.) 561, 187 A. 591.

An ordinary bill becomes effective as a law by the action of the General Assembly and approval by the Governor. Unless some such provision as is contained in Article 2, Sec. 16 should exist, legislators and citizens in general might have no fair knowledge of impending legislation until it shall have been finally adopted. No such arguments apply to constitutional amendments. These cannot become effective by the action of one General Assembly. Newspaper publication three months before the next General Election, inclusion in the official volume of laws, and the necessity of action by the succeeding General Assembly assure an opportunity to the people of this State to become acquainted with the contents of the proposed amendment. We do not think that Article 2, Sec. 16, has any reference to constitutional amendments.

We, however, do not hold that the title of the proposed amendment, found as Chap. 1, Vol. 37, and Chap. 3, Vol. 38, would be defective even if Article 2, Sec. 16, had application.

We assume rather than clearly understand, that the objection of the defendants is largely based upon the thought that Article 1, Sec. 4, "Trial by jury shall be as heretofore" has reference to trial by a Petit Jury and has no reference to a Grand Jury, and therefore when an amendment has reference solely to a Grand Jury that the amendatory provisions are ineffectual.

Having held that Art. 2, Sec. 16, has no application to constitutional amendments it is perhaps unnecessary to consider the matter further. We would, however, remark that unless Grand Juries are embraced within the provisions of Art. 1, Sec. 4, "Trial by jury shall be as heretofore", then there seems to be no constitutianal Grand Jury provided for and therefore no constitutional guarantee or assurance of Grand Jury action. No other provision of the Constitution seems to preserve the historical and highly prized safeguard of Grand Jury action, although it is provided that

"No person shall for any indictable offense be proceeded against criminally by information." Art. 1, § 8.

2. "That said purported indictment was not returned by a legally constituted Grand Jury in that Chap. 241, Vol. 40, Laws of Delaware, entitled 'An Act To Amend Chapter 131 Of The Revised Code Of Delaware (1915) As Amended, In Relation To Juries', is in conflict with Article 2, Sec. 16 of the Constitution of Delaware, and therefore void and without legal effect."

The defendants contend that the Statute, Chap. 241, Vol. 40, deals with both Grand Juries and Petit Juries, and that these are two separate and distinct institutions. The defendants therefore contend than an Act which, in its title, refers to "Juries" generally, covers two subjects and is therefore repugnant to the Constitution. The original Statute, to which the Act now under discussion is amendatory, provided that the Jury Commissioners should draw the twenty-four Grand Jurors; the amendment to the Statute provided for the Jury Commissioners to draw the number of Grand Jurors as provided by the above mentioned amendment to the Constitution. Without indicating any approval of the defendant's argument, we purposely fail to discuss the cases cited under this branch of the case. To us it seems that the Act, Chap. 241, Vol. 40, Laws of Delaware, has nothing whatever to do with the validity of the indictment here questioned. The number of Grand Jurors is fixed by the Constitution; the Jury Commissioners are bound thereby and can draw no more. The new Act is merely directory and it is quite immaterial to the present matter whether the new Act is in force or not, or whether the original Act is still operative, since the number of Grand Jurors is fixed by the Constitution.

3. "That said purported indictment was not presented and returned in accordance with the provisions of the Constitution of the State of Delaware and the Statutes of the State of Delaware in that said purported indictment was presented and returned on the evidence of witnesses who were not sworn and qualified by a person authorized by statute to administer oaths and in the open Courtroom, but in fact the Foreman of the Grand Jury attempted to qualify and swear the witnesses in the Grand Jury Room without authority in the premises, as shown by an affidavit attached to this motion. "

With the motion to quash the indictment the defendants have filed an affidavit of one of the witnesses before the Grand Jury to the effect that he was sworn by the Foreman of that Grand Jury, and by no one else, and that this the defendants contend, renders the indictment invalid as having been found upon unsworn testimony. The Court is usually loath to inquire as to transactions within the Grand Jury room but because the Court, of its own knowledge, knows of the uniform practice for the Foreman of the Grand Jury to administer oaths to witnesses before...