State v. Muldoon

Decision Date18 June 1941
Docket NumberNos. 8351-8368.,s. 8351-8368.
Citation20 A.2d 687
PartiesSTATE v. MULDOON et al, and seventeen other cases.
CourtRhode Island Supreme Court

Certified from Superior Court, Providence and Bristol Counties.

Joseph J. Muldoon, Lawrence A. Flynn, Ernest Quintin, Joseph P. Foley, Harold J. Graham, Alfred A. Varone, Owen E. Flanagan, Albert B. Bailey, Thomas H. Gorman, Edmund Flanagan, Louis F. McCaughey, William F. Foley, J. Everett McCabe, Eugene Lamarre, Felix J. Blais, Harold R. Abrams, Vincent J. Herchen, and Raymond J. Adams were indicted for conspiracy to violate the election laws, and they filed pleas in abatement and motions to quash, and the State demurred to. the pleas in abatement, and on the Attorney General's motion, certain questions were certified to the Supreme Court.

Questions answered, and cases remanded to the superior court.

John H. Nolan, Atty. Gen., and John E. Mullen, Asst. Atty. Gen, for the State.

Hurley, Moriarty & Connly, George Hurley, Walter V. Moriarty, John W. Moakler, Jr., and William S. Flynn, all of Providence, for defendants.

CAPOTOSTO, Justice.

The foregoing cases, which were certified to this court in accordance with the provisions of General Laws 1938, chapter 545, § 6, as amended, are eighteen indictments that were returned to the superior court of this state for the counties of Providence and Bristol on February 12, 1940, by a grand jury which had been summoned, impaneled and sworn in said court on September 18, 1939. Each of these indictments charges that the defendants therein named, in the city of Pawtucket, county of Providence, conspired to violate the election laws of this state in the general election of November 8, 1938. Since each indictment presents the same questions, we will treat them as if there were only one indictment before us. Furthermore, the word defendant, as hereinafter used by us, will refer to each and every defendant named in each of these indictments.

Upon the return of this indictment, the defendant filed a plea in abatement and a motion to quash in which he set forth, as grounds for dismissing the indictment, that certain members of the grand jury which returned the indictment were illegally drawn; and further, that certain members of the grand jury, residents of Bristol county, were ineligible to serve thereon.

The state demurred to the plea in abatement.

No action of any kind was taken in the superior court in this case on the demurrer to the plea in abatement and motion to quash until March 21, 1941. On that date, acting under General Laws 1938, chapter 545, § 6, as amended by Public Laws 1940, chapter 941, the attorney general filed a statement in this case setting forth that, prior to the trial thereof on its merits, certain questions had arisen therein which, in the opinion of the attorney general, were of such doubt and importance and so affected the merits of the controversy that they ought to be determined by this court before further proceedings. He therefore requested the superior court to certify said questions to this court for determination.

On March 24, 1941, the attorney general filed a motion in the case for certification of said questions, and on March 31, 1941, an order was entered by the superior court certifying said questions to this court for determination. It may be observed here that, because of a change of administration following the general election of 1940, the present attorney general was not the attorney general who was in office when this indictment was returned to the superior court in February, 1940.

The questions certified to us, stripped of legal phraseology, in substance are as follows:

(1) Is this indictment invalid because eleven of the twenty-two persons who served as members of the grand jury which returned this indictment—all of said eleven persons being residents and electors of cities in the county of Providence, when summoned, impaneled and sworn on said grand jury—were not drawn and qualified for service as grand jurors by the jury commissioner or by an assistant jury commissioner of the state in accordance with the provisions of Public Laws 1939, chapter 700, which was in force at the time they were sworn, but were drawn and qualified as grand jurors by the clerk of the superior court for the counties of Providence and Bristol in May, 1939, in accordance with G.L.1938, chap. 506, which was in force prior to the time when said chap. 700 became operative ?

(2) Did the presence on said grand jury of the eleven persons described in question (1) so violate the constitutional rights of the defendant that this indictment should be dismissed?

(3) Does the fact that two of the grand jurors were not residents of the county of Providence, but were actual residents of the county of Bristol when they were drawn, summoned, impaneled and sworn as members of said grand jury, deprive the defendant of his constitutional rights under sections 7 and 10 of article I of the Constitution of the state of Rhode Island and thereby render this indictment invalid so that it should be dismissed?

(4) Are sections 11, 14, 18 and 35 of P.L. 1939, chap. 700, constitutional in so far as they authorize an indictment, which charges the commission of a capital or other infamous crime within the county of Providence, to be found and returned by a grand jury on which there served, in the finding and returning of this indictment, a grand juror, who, at the time he was drawn, summoned, impaneled and sworn as a grand juror, resided and was domiciled in a town in the county of Bristol?

The four certified questions fall into two groups. Question (2) is substantially the same as question (1); and question (4) is substantially the same as question (3). We will first direct our attention to question (1).

Article I, sec. 7 of the constitution of Rhode Island, provides that no person shall be held to answer for a capital or other infamous crime, unless on presentment or indictment by a grand jury. The grand jury contemplated by our Constitution is a grand jury as known at common law. In re Opinion to the Governor, 62 R. I. 200, 4 A.2d 487, 121 A.L.R. 806. Such a grand jury must be composed of not more than twenty-three members, all of whom must be duly drawn and qualified according to law, and at least twelve of such members must concur in order to return an indictment that will meet the requirements of the State Constitution.

In the instant case, the defendant challenged each of eleven grand jurors on the same ground, namely, that each and all of them were not drawn and qualified according to law. The state concedes that if any one, and of course if all, of said grand jurors were not so drawn and qualified, then the indictment was not returned by a legal grand jury. Therefore, the controlling point in question (1) is whether the eleven persons challenged by the defendant, or any one thereof, were drawn and qualified for service as grand jurors in accordance with the law in force on September 18, 1939.

Public Laws 1939, chap. 700, hereinafter called chap. 700, was passed by the legislature at its January Session, 1939. The statute does not state the precise date when it was to take effect. But this is immaterial in the instant case, because the last possible date for it to become effective from the state's standpoint could not be later, in any event, than May 19, 1939. The eleven grand jurors questioned were not sworn until September 18, 1939.

Chapter 700 provided for the appointment of a jury commissioner, with jurisdiction over the entire state, by the governor with the consent of a majority of the justices of the superior court. Such a jury commissioner was appointed on June 14, 1939, and took his engagement of office on July 10, 1939. A period of over two months intervened between the time when the jury commissioner took office and September 18, 1939, when the grand jury under consideration in this case was summoned, impaneled and sworn.

The nature and extent of the change effected by chap. 700 deserves close attention. Did said chapter merely amend an existing system for drawing and qualifying grand jurors, which system was thereafter continued in force, as amended, or did said chapter discard the existing system and substitute therefor an entirely different system for drawing and qualifying grand jurors from and after "the period ending on the second Monday in July 1939", as stated in the statute, when the regular term for the year 1938-1939 of the superior court for the county of Providence ended?

Our examination of these two statutes shows that in one particular the provisions of chap. 700 are the same as or similar to those in G.L.1938, chap. 506. Both statutes leave to the town councils of the respective towns in this state the drawing of the names of persons liable for service as grand jurors from those towns. Here, the similarity ends. While said chap. 506 required that the list of names so drawn be certified to and be used by the clerk of the superior court for the county in which the town is located in summoning grand jurors from a town, chap. 700 requires that such list be certified to and be used by the jury commissioner in summoning such grand jurors.

The basic change in the law for drawing and qualifying grand jurors, which change, according to the defendant, is of vital importance in the instant case, relates to the drawing and qualifying of grand jurors from the cities of the state. Under G.L.

1938, chap. 506, such grand jurors were drawn, investigated and caused to be summoned for service by the clerk of the superior court for the county in which a city is located. Chapter 700 prescribed that, after its enactment, grand jurors from cities should be drawn, investigated and caused to be summoned for service by the jury commissioner.

We deem it necessary to quote or summarize the following sections of chap. 700. Section 8 provides as follows: "The jury commissioner shall on the first Monday of May of each year...

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    ...425, 431, 187 A.2d 772, 776 (1963) (citing Nolan v. Representative Counsel of Newport, 73 R.I. 498, 57 A.2d 730 (1948); State v. Muldoon, 67 R.I. 80, 20 A.2d 687 (1941)). "When the meaning of a criminal statute is ambiguous, the policy of lenity in the construction of criminal statutes requ......
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