State v. Tucker

• Decision Date: 16 July 1900
• Citation: 61 P. 894,36 Or. 291
• Parties: STATE v. TUCKER et al.
• Court: Oregon Supreme Court

61 P. 894

36 Or. 291

STATE v. TUCKER et al.

Supreme Court of Oregon

July 16, 1900

Appeal from circuit court, Union county; Robert Eakin, Judge.

Harry Tucker was convicted of burglary, and he appeals. Affirmed.

T.H. Crawford and J.M. Carroll, for appellant.

D.R.N Blackburn, Atty. Gen., Saml. White, Dist. Atty., and John McCourt, for the State.

WOLVERTON J.

The defendant Harry Tucker was accused, by an information filed by the district attorney, of the crime of "burglary, not in a dwelling house," jointly with one Wilbur Fruit and, upon conviction thereof, judgment was entered against him, from which he appeals. He complains that he was unlawfully accused, and therefore not duly convicted. This is based upon the contention that the act of the legislative assembly of February 17, 1899 (Sess.Laws 1899, p. 99), is in violation of section 18, art. 7, of the state constitution which involves, also, the inquiry whether he has not been deprived of the privileges and immunities vouchsafed to every citizen of the land by the fourteenth amendment to the federal constitution, whereby it is declared that no state shall deprive any person of life, liberty, or property without due process of law. The inquiry has received consideration at the hands of the supreme court of the United States, and has been decided adversely to the defendant's position. The question came up in the case of Hurtado v People, 110 U.S. 516, 4 Sup.Ct. 111, 28 L.Ed. 232, which involved the validity of a statute of California wherein it was made the duty of the district attorney, whenever a defendant was examined and committed as provided by the Criminal Code of that state, to file within 30 days thereafter in the superior court of the county an information charging the defendant with such offense; and it was distinctly announced, as a principle under the constitution, that the phrase "due process of law," as used in the amendment, "refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws and alter them at their pleasure." And further: "That any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law." From these premises it was concluded that although the grand jury was a tribunal known to and sanctioned by the common law, whose duty it was to make presentment of crime to the court, yet the preservation of the system was not essential to the perpetuation of those underlying principles of our civil and political institutions; that it constituted a preliminary proceeding, formal in character only, which could result in no final judgment, except as a consequence of a regular judicial trial; and that, as the defendant was yet entitled to all the rights and privileges of a regular trial subsequently to be had, the guaranty of the constitution had been amply conserved. This case has been subsequently cited by the same tribunal as authoritative, and has never, as we are aware, been departed from. See In re Kemmler, 136 U.S. 436, 10 Sup.Ct. 930, 34 L.Ed. 519; Hallinger v. Davis, 146 U.S. 314, 13 Sup.Ct. 105, 36 L.Ed. 986; McNulty v. California, 149 U.S. 645, 13 Sup.Ct. 959, 37 L.Ed. 882. The significant trend of judicial utterance of the state courts is to the same purpose. Perhaps the leading case is Rowan v. State, 30 Wis. 129. The facts upon which it is founded illustrate very clearly the situation attending the present controversy. Originally it was declared by section 8, art. 1, of the constitution of Wisconsin, that "no person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury." In 1870 the clause was amended so as to read, "No person shall be held to answer for a criminal offense without due process of law." The contention was that the amendment did not change the effect of the original clause, and that by the words "due process of law" there was still reserved the right to require an accusation by a lawfully constituted grand jury before the offender could be put upon his trial. Mr. Justice Cole, who announced the opinion of the court, considered the question in connection with the fourteenth amendment of the federal constitution, and his cogent reasoning, although addressed more particularly, to the bearing of the amendment, was intended to apply as well to the later declaration in the state constitution. He says: "The historical origin of the fourteenth amendment to the constitution of the United States is familiar to all persons in this country. Prior to its adoption there was a class of persons in the states, which on account of the state of public sentiment, were particularly exposed to oppressive and unfriendly local legislation. They were liable to be despoiled of their property, or to be deprived of their rights, privileges, and immunities, in an arbitrary manner, and without 'due process of law.' And the object of this amendment was to protect this class especially from any arbitrary exercise of the powers of the state governments, and to secure for it equal and impartial justice in the administration of the law, civil and criminal. But its design was not to confine the states to a particular mode of procedure in judicial proceedings and prohibit them from prosecuting for felonies by information, instead of by indictment, if they chose to abolish the grand jury system. And the words 'due process of law,' in this amendment, do not mean and have not the effect to limit the powers of the state governments to prosecution for crimes by indictments, but these words do mean law in its regular course of administration according to the prescribed forms and in accordance with the general rules for the protection of individual rights. Administration and remedial proceedings must change from time to time with the advancement of legal science and the progress of society, and, if the people of the state find it wise and expedient to abolish the grand jury and prosecute all crimes by information, there is nothing in our state constitution as it now stands, and nothing in the fourteenth amendment to the constitution of the United States, which prevents them from doing so." So it was concluded that "due process of law" did not require the preservation and perpetuation of the grand-jury system, and that its abolishment was not an infraction of the sacred and inestimable rights, privileges, and immunities to which every citizen of the state or of the United States is entitled as of right. See, also, In re Dolph (Colo.) 28 P. 470; In re Wright (Wyo.) 27 P. 565, 13 L.R.A. 748; In re Boulter (Wyo.) 40 P. 520; Bolln v. State (Neb.) 71 N.W. 444; State v. Sureties of Krohne (Wyo.) 34 P. 3; State v. Barnett, 3 Kan. 250; State v. Boswell, 104 Ind. 541, 4 N.E. 675. The history and development of the grand-jury system will demonstrate that its functions have not been uniform; that while it is a body of very ancient origin, and has become inwrought as one of the permanent institutions of the common law, its offices were not always the same. At first it was a body which not only accused, but tried, public offenders. At a later period it became an informing and accusing tribunal only, without whose previous action no person charged with a felony could, except in special instances, be put upon trial. At times it stood in the country of its birth as a barrier against prosecution in the name of the sovereign, but at length it came to be regarded as an institution by which

the subject was rendered sacred against oppression from unfounded prosecutions of the crown. "The institution," says Mr. Justice Field, "was adopted in this country, and is continued, from considerations similar to those which give to it its chief value in England, and is designed as a means not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it comes from government, or be prompted by partisan passion or private enmity." Grand Jury, Mr. Justice Field's Charge, 2 Sawy. 667, Fed.Cas. No. 18,255. The insertion of the clause in the federal constitution expressly providing for a continuation of the grand-jury system in national jurisprudence is ascribed to such reasoning as this. The learned justice was still upon the bench, however, when Hurtado v. People, supra, was decided, and gave his unqualified assent to the doctrine thereof. It is evident, therefore, that, while the great jurist commended the wisdom of the system as adopted in the national constitution, he did not deem its perpetuation essential to the regular and orderly administration of justice in obedience to the behests and requirements of the "law of the land" or "due process of law." The grand jury continues to be an accusing body, but the number of which it may be composed varies in the several states. Its sittings and deliberations are in secret, and usually ex parte; hence lacking even the primary essentials of due process of law,--the right of notice or a day in court. But this right is reserved to the accused upon his final trial by a jury of his peers.

The greater stress, however, is laid upon the question primarily stated,--whether the legislature of the state is empowered under the state constitution, to modify the grand-jury system,...