
    VALIDITY OF GRAND JURY PROCEEDINGS UNDER EXISTING LAW.
    Common Pleas Court of Montgomery County.
    State of Ohio v. Frank Ross and D. H. Swin.
    Decided, February 15, 1918.
    
      Criminal Law — Indictments Under the Constitutional Amendment of 1912 — Sufficient Authority Under the Common Law for Continuation of Grand Jury Proceedings — notwithstanding Omission of Legislative Action.
    
    Inasmuch as there has been continuous recognition of the common law grand jury from the earliest history of the state and references to a grand jury are contained in the statutes, an indictment returned since the adoption of the amendment to Article I, Section 10 of the State Constitution, in 1912, can not be considered as open to a-plea in abatement because of failure of the Legislature to determine the number of persons necessary to constitute a grand jury or to concur in an indictment under said amendment.
    
      Samuel D. Kelly and Joseph B. Murphy, Assistant Prosecuting Attorneys, for State.
    
      Joseph W. Shafts and Mulholland & Hartman, contra.
   Patterson, J.

The defendants in this ease are under indictment for assault with intent to kill. Upon arraignment each entered a plea' of not guilty with the understanding that this plea could subsequently be withdrawn for the purpose of filing any motion, plea or demurrer to the indictment. Accordingly the pleas were withdrawn and a challenge to the array of the grand jury was filed by the defendants, which was overruled -by the court.

Then each defendant filed a separate plea in abatement to the indictment alleging substantially the same grounds. Issue was taken upon this plea and the matter came on to be heard by the court upon argument and briefs of counsel. Some of the grounds raised a question of fact and the others a question of law. Tbe grounds raising questions of fact not being supported by any evidence and not appearing to the court to be sound, were overruled at the time of presentation.

The serious question raised by the plea lias reference to the' claim made by the defendants that they were not lawfully before the court for the reason that they were not indicted by a lawful grand jury, because Article I, Section 10, of the Constitution of Ohio, as amended in 1912, has not been carried out. The part of the section of the Constitution referred to reads as follows:

“No person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury, and the number of persons necessary to constitute such grand jury, and the number thereof necessary to concur in finding such indictment shall be determined by law. ’ ’

Counsel for defendants insist this clause is mandatory, and until it has been complied with the state of Ohio is without .a lawful grand jury. It is conceded that the Legislature has not acted in 'accordance with this amendment. The court has taken the time to read all the debates in the constitutional convention upon this section, and not one word was said in reference to this clause governing the number of the grand jury .and the number necessary to return an indictment. There was considerable discussion in reference to the taking of depositions in criminal cases, and the right to comment upon the failure of a defendant to take the witness stand. Section 5167 of the Revised Statutes, which provided for the number of persons summoned to serve as grand jurors, was omitted from the jury law which was passed in 1902 (96 O. L., p. 3). However, in the same law, Section 5168 of the Revised Statutes, now 11427 of the General Code, provided for “twelve persons to serve as petit jurors, or twenty-seven persons to serve as grand and petit jurors for a special term of said court.”

We can not see any more clearly why this provision related to a special term of court instead of the general term than we can see any reason for the omission in Section 5167 above referred to.

It is conceded that the common law grand jury consisted of not less than twelve nor more than twenty-three men. The common law grand jury has existed in Ohio without controversy ever since the Ordinance of 1787.

So, if there were no statutory authority .at this time in Ohio for a grand jury, we would still have one under the common law.

In addition, however, to Section 11427 above referred to, we have two other sections in the General Code which give us the right to conclude that the Legislature had recognized the number fifteen as the number to constitute a lawful grand jury, as well as twelve to be the least number that c.an return an indictment.

Section 13568 provides:

“After the discharge of the grand jury the court, when necessary, may order the sheriff to call together a new grand jury from the bystanders or neighboring citizens of -fifteen good and' lawful men having the qualifications of grand jurors, who shall be returned and sworn, and proceed in the manner provided by law.”

And Section 13571 provides:

“At least twelve of the grand jurors must concur in the finding of an indictment, and when so found the foreman shall endorse on such indictment the words ‘A true bill,’ and subscribe his name as foreman.”

These two sections are under a chapter of the General Code which is headed “The Grand Jury .and Its Proceedings.”

Section 11427 is carried into .an act “To Revise certain sections of the General Code, relative to the organization, jurisdiction and procedure of the Supreme Court, the court of appeals and other courts,” which was passed by the Legislature April 29, 1913, and found in 103 O. L., page 425. This was an .act of the Legislature concerning the grand jury passed since the adoption of the new Constitution. And while in this section reference is only made to a special term of court, we can not concede that it was intended to provide one law for the governing of a special term of court and leave the general term of court without any law governing the grand jury.

We do not concede that it is necessary for the Legislature to take any action in this matter for the reason that the state of Ohio, as above stated, from the time it was a territory has recognized the common law grand jury; it has been used by the courts without interruption or criticism, and has met with the general approval of the people. It has been nowhere suggested that the people at any time have been dissatisfied with our grand jury system, or with the number composing the same, or the number necessary to return an indictment. The objection raised by the plea herein possesses more shadow than substance, and no convincing reason has been presented to this court why the state of Ohio should be turned over to the law violators. If the Legislature has blundered in this matter the courts, while not attempting to legislate, will stand today, as they have in the past, for the protection of our citizens in their property and person.

Pleas overruled and exceptions noted.  