Opinion
05-16-1933
STATE v. ANDERSON et al.
Daniel J. Layton, Atty. Gen., and P. Warren Green and Robert H. Richards, Jr., Deputy Attys. Gen., for the State. James R. Morford and John Biggs, Jr., both of Wilmington, for defendants.
It was not necessary that amendment adopted March 9, 1933, be construed as becoming operative only in December, 19:!3, in order to prevent existence of period when no grand jury could be drawn or function, although grand jurors are, under Rev. Code 1915, §§ 4252-4281, chosen annually in December by jury commissioners, since court, under Rev. Code 1915, § 4266, could have provided a new and legal grand jury by means of a tales de circumstantibus after passage of constitutional amendment.
Const, art. 1, § 4, as amended in 1933 (see 37 Del. Laws. c. 1). changed number of grand jurors for New Castle county, proportion required for finding of indictment, and general composition of grand jury, and such changes, effective as of March 9, 1933, the date of adoption of constitutional amendment, necessarily resulted in establishment, as of such date, of requirements of a lawful grand jury, and grand jury not constituted in conformity therewith was unlawful, and court could not declare that any particular 15 members of the old panel should after the amendment he the legal grand jurors so as to validate indictments.
Proceeding by the State against Charles E. Anderson and others on nine Indictments charging defendant with violations of Rev. Code 1915, § 1024, to which indictments defendant pleaded not guilty. On motion to withdraw pleas of not guilty and enter motions to quash.
Motions granted, and indictments quashed.
RICHARDS and RODNEY, JJ., sitting.
Daniel J. Layton, Atty. Gen., and P. Warren Green and Robert H. Richards, Jr., Deputy Attys. Gen., for the State.
James R. Morford and John Biggs, Jr., both of Wilmington, for defendants.
Motions to withdraw pleas of not guilty and enter motions to quash.
Charles E. Anderson, James Keenan and Delaware S. Wright, all members of the Levy Court in and for New Castle County, were charged by nine indictments with violations of section 1024 of the Revised Code of 1915, which provided:
"It shall be unlawful for any Levy Court Commissioner for New Castle County, directly or indirectly, to cash, buy up, purchaseor redeem any County Warrant drawn in favor of any other person."
The indictments were returned by the Grand Jury on March 9, 1933. Prior to March 9, 1933, the only constitutional provision in Delaware regulating juries was article 1, section 4, of the Constitution of 1897, providing that
"Trial by jury shall be as heretofore."
This exact provision bearing identical Article and Section numbers appeared in the Constitution of 1792 and 1831. The manner of selection and the provisions concerning Grand and Petit Juries were set out in Chapter 131 of the Revised Code of 1915, §§ 4252-4281. So far as applicable to this case these provided for Jury Commissioners, who should, in each county in December of each year, draw in a stipulated manner twenty-four Grand Jurors for each County, who should serve as Grand Jurors for the ensuing year.
The Jury Commissioners for New Castle County in December, 1932, performed their duties and the Grand Jurors were sworn and acted at the January Term, 1933, and also at the March Term, which convened on March 6, 1933. This Grand Jury of twenty-four members, or a portion thereof, was the one which, on March 9, presented the indictments involved in the present motion.
The Constitution of 1897 provided for amendments in the following language:
Article 16, § 1. "Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives; and if the same shall be agreed to by two-thirds of all the members elected to each House, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and the Secretary of State shall cause such proposed amendment or amendments to be published three months before the next general election in at least three newspapers in each county in which such newspapers shall be published; and if in the General Assembly next after the said election such proposed amendment or amendments shall upon a yea and nay vote be agreed to by two-thirds of all the members elected to each House, the same shall thereupon become part of the Constitution."
The General Assembly of 1931 adopted the following amendment:
"Section 1. That Section 4 of Article 1 of the Constitution of the State of Delaware be amended by adding to the end thereof the following words:
"'Provided, however, that Grand Juries in New Castle County shall consist of fifteen members, one of whom shall be selected from, and shall be a resident of, each representative district in said county, and the affirmative vote of nine of whom shall be necessary to find a true bill of indictment; and Grand Juries in Kent County and in Sussex County shall consist of ten members, one of whom shall be selected from, and shall be a resident of each representative district in the county in which he or she is selected, and the affirmative vote of seven of whom shall be necessary to find a true bill of indictment.'" (See 37 Del. Laws, p. 13.)
This amendment was presented to the General Assembly of 1933 and adopted by the House of Representatives on January twenty-seventh, 1933, and by the State Senate on March ninth, 1933, the same date as that on which the indictment had been found.
At the March Term, when the indictments were found, a plea of not guilty was entered as to each indictment before the passage of the constitutional amendment was known.
A motion was made to withdraw the plea of not guilty and to enter motions to quash the indictment on the ground that the Grand Jury when it returned the indictments on March 9, was not a legally constituted body.
Affidavits were filed showing that the constitutional amendment was adopted by the State Senate on March 9, 1933, at three-ten in the afternoon and that the presentment by the Grand Jury was after four-thirty in the afternoon of March 9.
Counsel for the defendants contended that on March 9 the amendment became a part of the fundamental law and after its adoption no Grand Jury of twenty-four members could function; that after its adoption no Grand Jury could consist of more than fifteen members in New Castle County and any purported action by a different and a larger body was entirely illegal. They argued that it was immaterial in this case whether the theory and principle of failure to recognize the portion of a day be adopted whereby the Constitutional amendment would be considered as having become effective at the earliest moment of that day or whether the Court would inquire as to the exact time of the passage of the amendment as contrasted with the exact time of the indictment. In either case they contended that the constitutional amendment preceded in point of time and invalidated the indictment.
The State did not controvert the fact that the amendment preceded the indictment in point of time, but contended that the amendment was not self-executing. They argued that the only statutory provision regulating the drawing of Grand Jurors stipulated that the Grand Jurors should be drawn annually in December for the coming year; that this had been done and that the authority of the Jury Commissioners was exhausted; they contended that if the Grand Jurors for 1933 ceased to be a legal Grand Jury on March 9, that there was no provision for a lawful Grand Jury for the balance of the calendar year. The State insisted that the amendment simply changed the number of Grand Jurorsand that the intent was plain that the amendment should become operative only at the time when the next Grand Jury should have been drawn.
It is true that after March 9, an act of Assembly was passed requiring the Jury Commissioners to draw Grand Jurors in the number stipulated in the amendment and that new Grand Juries had been drawn replacing, in each county, the old Grand Juries drawn in December, 1932.
The State contended, however, that this act was only passed as a matter of precaution and that in the absence of this last statute the Grand Juries properly drawn for 1933 would have been the legal Grand Juries for that entire calendar year.
RODNEY, J., delivering the opinion of the Court:
We think the motion to withdraw the pleas of not guilty and the filing of the motions to quash the indictments should be granted.
The matters here involved present interesting and important questions of constitutional law. A proper regard for the rights of a defendant require that when seasonable application be made he be allowed to test the validity of the indictment upon which he is to be tried and not be forced to undergo a trial, and in the event of an adverse verdict, then attack the preliminary and basic charge which might have been done in limine. Particularly is this true when as in this case the Court has heard the argument and is convinced of the correctness of the defendants' contention as to the invalidity of the indictment.
From the limited time allowed us for the examination of the matter, we are of the opinion that the motion to quash should be granted.
There can be no doubt that an amendment of a Constitution, in the absence of any express limitation, becomes a part of the organic law at the time of its adoption. Senaca Min. Co. v. Osmun, 82 Mich. 573, 47 N. W. 25, 9 L. R. A. 770; Woman v. Hagan, 78 Md. 152, 27 A. 616, 21 L. R. A. 716. In Delaware, after an affirmative vote of the General Assembly, it is expressly provided that an amendment "shall thereupon become part of the Constitution."
There is some diversity of opinion where the amendment is adopted by a vote of the people as to whether it becomes operative upon the canvass of the vote or upon the promulgation of the result by a stipulated officer, but no such question arises here. The amendment was adopted and became part of the Constitution on March 9 by the concurrence of the second of the two Houses of the General Assembly. There was in the amendment no schedule or other expressed intent deferring its operation for any length of time. In the absence of such provision, we cannot supply it. We cannot say that the House of Representatives and the Senate both intended the amendment to lie dormant for upwards of nine months after its adoption, or until December, 1933. To do so, we would have to make that intent applicable to both houses of the General Assembly of 1931, as well as that of 1933, for both houses of both General Assemblies approved the amendment.
The precise question here involved seems to have seldom arisen. One case, however, holds strong similarity. In Downs v. Comm., 92 Ky. 605, 18 S. W. 526, 527, it appears that the Grand Jury had consisted of sixteen men. The new Constitution was promulgated September 28, 1891, Section 248 providing "A grand jury shall consist of twelve persons, nine of whom concurring, may find an indictment." An indictment was found the following month (October, 1891) by the old Grand Jury of sixteen men. The defendant was convicted and on appeal the Court said:
"The section quoted must now be regarded as, from the date mentioned [the date of its adoption], the law controlling the number of persons required to constitute a grand jury; and, as a person cannot be legally tried and convicted of a public offense under an indictment found and returned by a grand jury illegally constituted and empaneled, it necessarily results that the judgment in this case must be and is reversed and remanded, with directions to set aside the verdict."
In the present case, as in the one cited, the Grand Jury was illegally constituted. Here it consisted of over twenty members present in the Grand Jury room and voting on the indictment when the Constitution as amended only provided for fifteen. It is axiomatic that the votes of Grand Jurors must be confined to the legal members. No power exists to declare that any particular fifteen members of the old panel should, after the amendment, be the legal Grand Jurors. The amendment did not change the Grand Jury system, but it did change the number of Grand Jurors, the proportion required for the finding of an indictment and the general composition of Grand Juries. These changes, effective as of March 9, 1933, necessarily resulted in the establishment as of that date of the requirements of a lawful Grand Jury. A Grand Jury not constituted in conformity therewith must have been unlawful.
Constitutional provisions limiting the number of Grand Jurors have uniformly been held to be both mandatory and self-executing. Wells v. Comm. (Ky.) 22 S. W. 552; Sanders v. Comm. (Ky.) 18 S. W. 528; State v. Caldwell, 50 La. Ann. 666, 23 So. 869, 41 L. R. A. 718, 69 Am. St. Rep. 465; Sharp v. Natl. Biscuit Co., 179 Mo. 553, 78 S. W. 787.
We do not think, as contended by the State, that it is essential that the amendment beconstrued as only becoming operative in December, 1933, in order to prevent the existence of a period when no Grand Jury could be drawn or function. It is true that the Grand Jurors are by statute chosen annually in December by the Jury Commissioners and it is not necessary to consider the power of the Jury Commissioners to draw a new Grand Jury after the constitutional amendment in the absence of the newly conferred authority. We would call attention to section 4266 of the Revised Code of 1915, not mentioned in the argument:
"If at any court a sufficient number of grand or petit jurors, drawn and summoned as aforesaid, do not appear; or if the panel returned by the Sheriff be quashed by the Court, the Court may award a tales de circumstantibus, or make such other order as it may deem expedient for filling up the requisite number of jurors to serve at such Court."
This is an old provision existing in almost its present form since 1793 (2 Del. Laws, 1074) and in precisely the present phraseology since 1852 (Rev. Code 1852, page 387). Under this statutory provision we think that the Court would have had little difficulty, after the passage of the constitutional amendment changing the number of Grand Jurors in providing a new and legal Grand Jury for the performance of its public duties by means of a tales de circumstantibus.
In State v. Windsor, 5 Har. 512, at page 513, the Court exercised the power under this statute with reference to the entire array of petit jurors.
While not determinative of or particularly material in the instant case, attention should be called to State v. Brown, 2 Marv. 380, 36 A. 458. This was a capital case in Court of Oyer and Terminer which met only upon judicial precept to try capital cases. Statutes provided that indictments in capital cases might be found by the Grand Jury summoned for the Court of General Sessions (an inferior Criminal Court, not having jurisdiction of capital cases) and be then removed by certiorari to the Court of Oyer and Terminer; an alternative method of finding indictments directly in the Court of Oyer and Terminer was provided in which case the Grand Jury was expressly summoned in the precept calling for the meeting of the Court. In State v. Brown the Grand Jury was not expressly called in the precept but a notation to that effect was upon the margin. The indictment was not found in Court of General Sessions and removed by certiorari. No objection was made by plea of abatement or motion to quash, but after trial and conviction objection was made by motion in arrest of judgment The Court was evenly divided and of four Judges sitting Lore, C. J., and Cullen, J., were of the opinion that the indictments were void. Grubb and Marvel, JJ., sustained the indictments on the ground that all objection thereto had been waived by going to trial.
We are of the opinion that after the adoption of the constitutional amendment no valid indictment could be presented by any Grand Jury except that such Grand Jury be constituted as that amendment prescribes.
Because the present indictments were found after the adoption of the constitutional amendment, but not by a Grand Jury constituted as required by that amendment, we think such indictments are illegal and in valid.
The motions to quash are granted.