Wilson v. People
| Decision Date | 01 April 1877 |
| Citation | 3 Colo. 325 |
| Parties | WILSON v. THE PEOPLE. |
| Court | Colorado Supreme Court |
Error to District Court of Jefferson County.
AT the October term, 1876, of the district court of Jefferson county, the sheriff returned a venire for a grand jury of nineteen served. Twelve of these were selected, impaneled and sworn. They returned an indictment into court against the plaintiff in error for an assault with intent to murder. The defendant below was arraigned, pleaded not guilty, and being put upon trial was convicted. Motions for a new trial and in arrest of judgment were severally interposed and overruled judgment was entered on the verdict and the defendant sentenced.
Messrs BROWNE & PUTNAM, for plaintiff in error.
A. J SAMPSON, Attorney-General, for defendant in error.
The grand jury system established by the Territorial legislature was materially modified by the constitution. At the common law a grand jury was composed of not more than twenty-three nor less than twelve good and lawful men, although twenty-four were usually summoned. If but twelve grand jurors constituted the panel they must have concurred to find an indictment. If the panel was made up of a larger number, twelve, at least out of that larger number must have concurred.
Under the Territorial statute a grand jury was composed of not less than sixteen nor more than twenty-three persons, twelve of whom, the common law number, were required to concur to find an indictment. By our Constitution (section 23, article 1) a grand jury is declared to consist of twelve men, any nine of whom concurring may find an indictment. The record affirmatively shows that the sheriff returned into court a writ of venire facias, which had issued for the summoning of a grand jury to attend at that term, and that by his indorsement on said writ, he had, in pursuance thereof, summoned nineteen persons. The writ is not set out in the tran ript, nor need it be, unless there is some special reason for so doing. Mackey v. The People, 2 Col. 17.
Sufficient, however, appears, to evince that the grand jury was not summoned with reference to the constitutional requirement, which limits that body to twelve men. It is obvious that the sheriff, by virtue of a venire facias issued for twenty-three persons, pursuant to 'an act to provide for the selection of jurors to serve in the district courts' (Session Laws 1874, p. 170) had summoned the nineteen jurors in attendance. Under this act the jurors must have been selected at the preceding April term of court several months before the change was made in the grand jury system, by the adoption of the Constitution. This act is still in full force except in so far as it is in conflict with that instrument. The mode of selecting jurors is not altered, but the panel of the grand jury is limited to twelve persons. To effectuate the purpose of the legislature in prescribing a particular made of selecting jurors, the court may have, of the nineteen in attendance, selected the first twelve that had been drawn from the box, by the clerk of the district court at the April term, if their names in the order in which they were drawn had been preserved. Or the court may for some sufficient reason, by virtue of its common-law power, which is recognized by the statute, have ordered a special venire, under which the sheriff may have summoned the identical panel that found the indictment. Stone v. The People, 2 Scam. 328. It is unnecessary to speculate as to the precise mode adopted by the court to secure a legal grand jury, or to express an opinion as to what was the proper mode under the peculiar circumstances, or even to decide affirmatively that another mode than either of those above suggested was not the only course open to the court.
Every reasonable intendment must be made in favor of the regularity of the record. The record asserts that the grand jury of twelve men were selected and chosen according to law, but as to the particular manner of selecting them, it does not speak. We are not permitted to presume, in the silence of the record, that the court adopted an illegal method in convening the grand jury.
It is said in Chase v. The State, 46 Miss. 697: 'A grand jury was impaneled under the supervision of the court, and the presumption is not an unreasonable one, that a legal grand jury was organized according to law,' the record not showing to the contrary.
Where it does not affirmatively appear that the grand jury is an unlawful body, any irregularity in selecting and impaneling it should in general be raised before plea, by challenging the array, and not by a motion in arrest of judgment. Wharton's Crim. Law, s 469, and cases cited; 1 Bishop's Crim. Pro., s 887, and cases there cited.
The case before us comes within the general rule.
Where, however, it is apparent upon the face of the record, that the grand jury finding the indictment could not have been a legal body, e. g., where the statute enacts that a grand jury shall consist of not less than thirteen, nor more than eighteen persons, and the record shows that the indictment was found by a grand jury composed of nineteen persons, advantage may be taken of the defect by a motion in arrest of judgment. Miller v. The State, 33 Miss. 356.
The denial of the motion for a continuance on the ground of the absence of a witness was not error. The affidavit did not set up sufficient facts to warrant the court in continuing the cause. From the affidavit it appears that the prisoner neither knew the name of the witness, his place of residence nor where he could probably be found. So far as the affidavit shows, no inquiries were ever made to ascertain his whereabouts. No efforts were made to secure his attendance at the trial. There is a total want of that degree of diligence which the law enjoins upon him who asks the interposition of the court to delay a cause. For any thing set up in the affidavit there are no reasonable grounds for believing that...
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