Sacramento daily record-union., 1889-09-29

fore. that the absence of one or more of
the jurors will not incapacitate the re-
mainder from acting, if twelve are left to
concur in the finding of "a true bill" The
opinions of several lawyers have been pub
lished as adverse to the holding of the
Superior Court, but they all fasten their
faith upon the cases passed upon by the
Supreme Court and no reasons are given
save those of precedent"
Now, let the reader, setting aside prece-
dent, apply the reason of the layman to
the question, and he will find that there is
much to support the view of the Superior
Court, and to cast doubt upon the wisdom
of the Supreme Court decision referred to-
and from which two of the five Justices
dissented- two, by the way, who were
especially familiar with criminal law.
The code declares (Sec. 242, c. C. P.)
that Grand Jury shall consist of nineteen
persons. 1t no where makes provision for
any less number, but it does declare that
the concurrence of but twelve shall be
necessary to the finding of an Indictment.
Now, it is clear that it is the right of every
person charged with crime, or of any
official into whose affairs of Office the
Grand Jury inquiries, to have the judg-
ment of the Grand jury as a
whole upon his case; that is, to
say, of the nineteen jurors, not of
eighteen or seventeen or fewer. While
twelve may indict, yet if the thirteenth or
fourteenth or nineteenth juror is absent
from the consultation, the judgment of a
Grand Jury, as defined by the code, has
not operated upon the case examined into
1t is clear to lay reasoning that if one
juror may absent himself without dissolv-
ing the panel, that seven may do so, and
the code law be thus superseded by jury
made law, and Grand Jury may thus set
up rule not contemplated by the law
makers when nineteen were named. More
over, if seven may absent themselves, the
remaining twelve must concur in finding
true bills in all cases. But if the nine
teen are present in all cases, there can be
distinct and differing groups of twelve not
only in every case of concurrence, but in
such vast numbers that it bewiIders the
mind to calculate the permutative changes.
This simple statement appears to reveal
the whole purpose of the law, to wit, that
nineteen men shall be Grand Jury to
consider all matters before such an inquisi-
tion, and that the whole number shall be
greater than the necessary concurring
number, in order that no single set OF
twelve shall he driven to constant concur
renee. If they were, if seven could re-
main away and force one group of twelve
to concur or fail to inGict, injustice would
be done to the State, and criminals might
go free who ought to be punished, since
one man of the twelve could balk the en-
tire power of the jury. On the other
hand, the party charged is entitled to have
in the counsel and debate had upon his
case the judgment, voice and prerogatiye
of every man sworn as Grand Juror. To
deprive him of that judgment and vote
may be to shear him of right of liberty,
since the absent one, by his presence, ad-
vice and wisdom, might give a different
direction to the whole current Of delibera-
ton.
1t is conceded, that while nine trial iu-
rors may render a verdict, there must be
"twelve men good and true" to hear and
deliberate upon the case. Why should
not the reason for this apply also to action
of the Grand Jury, that while twelve may
indict nineteen must be present at the
consideration of the case?
To such reasoning the San Francisco
Examiner replies with blunder, that
''the code requires only twelve to be pres
ent at the finding of an Indictment" On
the contrary, the code says (Sec. $40 P. c.
"An indictment cannot be found without
the concurrence of at least twelve Grand
Jurors" And again (Sec. 93l, P. C.), "a
presentment cannot be found without the
concurrence of at least twelve Grand Ju-
rors." In neither case is the word "pres
ent' used, but the words "at least" indicate
that the intent of the law is, that vote
shall be taken among the nineteen, some
one group of twelve of which must vote
AYE" Certainly then, since the law
everywhere speaks of the Grand Jury as a
body, and since it nominates the constit-
uent units Of that body, it was intended
that all should act and not lesser number.
Such is the reasoning that may be adj
yanced from lay point Of view in sup
port of the doctrine that less than nine
teen jurors do not constitute Grand Jury
for any purpose. Opposed to it is the die
tum of several lawyers who point, as law
yers are apt to do, to precedent, and de-
clare that in three cases the Supreme
Court has held to the contrary view and
that is sufficient. As we said in the out
set while Supreme Court made law must
obtain, until the Court reverses itself, as it
has done more than once, the reason of the
law is strongly in support of the view
taken by the Sacramento Court, and if it
does not prevail it ought to. When nine
teen Grand Jurors are impaneled, the
county is entitled to their services and to
the service Of all of them. If it was ever
contemplated by the law. makers that less
than the whole number could deliberate
on case, or make a report, why did they
not make it manifest some where in the
law.
NOTE AND COMMENT,
The Peialuma Courier has entered upon
its thirteenth volume.
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