State v. Salts

• Decision Date: 06 September 1888
• Citation: 77 Iowa 193,39 N.W. 167
• Parties: STATE v. SALTS.
• Court: Iowa Supreme Court

77 Iowa 193

39 N.W. 167

STATE

v.SALTS.

Supreme Court of Iowa.

September 6, 1888.

Appeal from district court, Adams county; JOHN W. HARVEY, Judge.

Defendant was convicted of the crime of nuisance, by unlawfully selling liquors, and the court pronounced judgment against him, imposing a fine, and from that judgment he appealed.H. T. Dale, for appellant.

A. J. Baker, Atty. Gen., and Burg. Browne, Co. Atty., for the State.

REED, J.

1. The indictment was found after the taking effect of chapter 42, Laws 21st Gen. Assem. Adams county having a population of less than 16,000, the grand jury therein, under the provisions of the act, is composed of five members, and the grand jury which found this indictment was composed of that number. Defendant demurred to the indictment, alleging that the statute under which the grand jury was organized is in conflict with section 11, art. 1, of the constitution. The particular provision of the article which it is claimed the act infringes is the following: “And no person shall be held to answer for any higher criminal offense, unless on presentment or indictment by a grand jury, except in the army or navy, or in the militia when in actual service in time of war or public danger.” Before the taking effect of the act the grand jury was composed of 15 members; that number being prescribed by the statutes then in force. But, before the adoption of the amendments to the constitution, which were adopted by the people of the state at the general election in 1884, it could not have been constituted with less than 12 members; for at common law a grand jury must consist of that or some greater number, not exceeding 23, and it is to a tribunal thus constituted that the provisions of the constitution then in force referred when they spoke of a grand jury. The words, “a grand jury,” as they occurred in those provisions, were used in the sense and with the meaning given them by the common law. It was also a rule of the common law that, when a grand jury consisted of but 12 members, an indictment could not be found without the concurrence of all of the members; and, when composed of a greater number, that number at least must concur; and this rule, requiring the concurrence of 12 grand jurors before an indictment could be found, was preserved by our statutes. The amendment to the constitution, adopted in 1884, provides that “the grand jury may consist of any number of members, not less than five nor more than fifteen, as the general assembly may by law provide, or the general assembly may provide for holding persons to answer without the intervention of a grand jury.” The act in question provides that, “in counties having a population of sixteen thousand inhabitants or less, the grand jury shall be composed of five members; and, in counties having a population of more than sixteen thousand inhabitants, it shall consist of seven members.” It is this latter provision which it is claimed is in violation of the provision of the bill of rights quoted above, (section 11, art. 1.) The argument is that the inherent principle of the common law is that an indictment can only be found by the concurrence of at least the smallest number of which the grand jury can consist, and that this principle was necessarily included in the constitution when the system was adopted, and is neither abolished nor modified by the amendment; and hence, as the constitution now fixes five as the smallest number of which the tribunal can consist, the provision that an indictment may be found upon the concurrence of four jurors is in conflict with it. If counsel's premises should be conceded, his conclusion would follow logically and necessarily. But we think the premises are not sound.

The reason of the rule that at least 12 grand jurors must concur in the finding of an indictment is not in the fact that that was the smallest number of which the tribunal could be composed. If that were true, it would have followed that if the general assembly, as it might have done, had designated 13 or 14 as the smallest number of which the grand jury should consist, that all must have concurred. For the amendment of 1884 is a limitation only as to the maximum and minimum numbers that may be adopted, and it empowers the general assembly to adopt any number within the limits prescribed; and, when any number within those limits is prescribed by statute, it at once becomes the smallest number of which the body can be composed. But, further than this, it would have been competent for the general assembly, before the amendment, to fix any number between 11 and 24 as the smallest number of which the grand jury should be composed; for the rule, which by implication became a part of the constitution, fixed only the maximum and minimum numbers, and left with the general assembly the power to adopt any number within those limits. Now, if the argument is sound, it would have followed, if that course had been pursued, that all the members of the body must have concurred in the finding of an indictment; for the number prescribed would have been the smallest of which it could legally be composed. But the reason of the rule had relation to the number 12, and not to the fact that that was the smallest number of which the grand jury could be composed. Under the common law, no man could be subjected to punishment for crime until 12 of his neighbors and peers had concurred in an accusation against him, and a like number had by their verdict pronounced him guilty upon that accusation, and the rule is but the expression of that principle. But it is modified by the amendment of 1884. The rule that the accusation must be concurred in by 12 men is swept away, and it may be made by a grand jury of such number, within the prescribed limits, as the general assembly may designate, or the party may be held...