
    Supreme Court—General Term—Third Department.
    
      September, 1883.
    (Reversing 1 If. T. Grim. Rep. 307.)
    PEOPLE v. FITZPATRICK.
    Constitutional Law.—Objections to Grand Jury, and to indictments found by it, how made.— Unconstitutionality of statute, by whom may be alleged.
    A grand jury cannot be discharged as to some of the persons indicted by it and remain as to the others; if discharged as to one, it must be discharged as to all.
    Nor can it be discharged by an order made to take effect retroactively, as of a date prior to its action as a grand jury. Such an order made subsequent to the finding of an indictment cannot alter the fact that the body of men summoned as a grand jury was not discharged, but acted as such and found the indictment.
    Prior to the attempt to organize the grand jury of Albany county which found the indictment against the defendant, and before the persons summoned to serve as such grand jurors had been accepted or sworn, defendant, who had given bail to answer any indictment, which might be found by such grand jury, objected to such individuals collectively and severally, and moved to °set aside and discharge the entire number, on the ground that said persons had been drawn and selected from a list prepared by the Recorder of Albany, in accordance with the provisions of L. 1881, c. 532, amending Code of Civil Procedure, 1041, and not from a list made by the supervisors as directed by the Revised Statutes, 2 R. S. 720, § 1, et seq. It was conceded that the act under which the persons so summoned had been selected had not been reported to the legislature under the State Constitution, art. 3, §§ 18 and 25, which forbids the passing of a local act for selecting, drawing, summoning, or impaneling grand jurors unless such bill shall be so reported by commissioners appointed pursuant to law to revise the statutes. Held, that this grand "jury having been held to be a legal grand jury by the Court of Appeals in People v. Petrea (1H. T. Grim. . 
      Sep. 233) the present indictment cannot be set aside on the ground of the illegality of such grand jury.
    Where the requisite number of ballots has been drawn from the only box and list of names made up in the county from which to draw grand jurors, sitid list being selected under color of law to serve as such, a grand jury so selected is a legal one.
    Therefore it was not a wise exercise of judicial discretion to set aside the panel under § 238 of the Code of Criminal Procedure, because the requisite number of ballots was not drawn from the grand jury box of the county.
    That such objections rvere presented to the court before the finding of the indictment against defendant, is no reason why such indictment should be set aside ; for a motion to quash or set aside an indictment cannot be made before it is found.
    The objections filed by defendant were in effect a challenge to the array, and are therefore forbidden by § 238 of the Code of Criminal Procedure.
    A challenge to the array is an objection made to the swearing in and impaneling of a grand jury.
    The unconstitutionality of a statute can be set up only by one whose rights are affected thereby.
    Appeal by the People from an order made by Hon. T. E. Westbrook on August 6,1883, at a Court of Oyer and Terminer of Albany County, discharging the body impaneled as a grand jury, as to the defendant, Thomas Fitzpatrick, and. quashing the indictment found by that body against him.
    The decision here appealed from is reported ante, page 307. At the May term, 1883, of the Albany Oyer and Terminer, the defendant, who had been theretofore held to await the action of said grand jury, appeared by counsel and filed objections to the persons about to be sworn in as grand jurors, upon grounds stated in the head-note, and more fully in the opinion of West-brook, J. {ante, 307).
    Upon the hearing of these objections the Court made the' following Order:
    “ Ordered, That as to the defendant, Thomas Fitzpatrick, the body impaneled as a grand jury at the opening of this court be and the same is hereby set aside and discharged, and the persons summoned to serve as such grand jurors be and they are hereby discharged from service as such grand jurors, as of date of the first presentation of such objections, and the presentment against the said defendant returned by such persons and such body acting as a grand jury be not received by the Court, and stand as quashed.
    “ This order to take effect and to be deemed as made on the 7th day of May, 1883, at the opening of the court on that day, so far as to discharge of the persons and panel summoned to act as grand jurors is concerned.
    
      “ ¡Nothing in this order or proceeding contained to affect the action of said grand jurors as to persons not having made objections to those acting.”
    From this order the present appeal is taken.
    
    
      D. Cady Herrick, district attorney for the People, appellant.
    I. ¡Defendant could not raise the constitutional questions set forth in the paper filed by him, and stated in his objections to the grand jury, for the reason that no rights of his' were involved.
    
      a. The manner of selection of the grand jurors is something in which defendant has no interest. The only thing which the law guarantees him against is, that an indictment shall not be found against him by his prosecutors or. by the witnesses against him. Friery v People, 2 Keyes, 425 ; Cox v. People, 19 Hun, 430; Carpenter v. People, 64 N. Y. 483 ; Pierson v. People, 79 Id. 424; People v. Petrea, 1 N. Y. Crim. Rep. 243.
    
      b. The question of the constitutionality of an act can only be raised by one whose rights are injuriously affected. Cooley Const. Lim. 163; Pierrepoint v. Loveless, 72 N. Y. 211; Wellington’s Petition, 16 Pick. 87 ; Commonwealth v. Wright, 42 Amer. Rep. 203."
    
      c. The Constitution does not direct or forbid any method of obtaining a grand jury. The law does not now, nor has it for many years, permitted a defendant to go back any further in the process of obtaining jurors than the summoning; he can raise no question as to their selection. 3 Rev. Stat. 1018, §§ 27 28 ; Carpenter v. People, 64 N. Y. 483 ; People v. Harriott, 3 Park. 112.
    II. The paper filed by defendant in the court below, as welT as the whole proceeding, was not only unauthorized but contrary to the law of the State. These objections were a challbnge to the array. People v. Petrea, opinion of Bockes, J., 1 N. Y. Crim. Rep. 208. Not being among the objections authorized by the Code of Criminal Procedure (§§ 237-239), they are forbidden. People v. Petrea, 1 N. Y. Crim. Rep. 244.
    III. The provision of the Code of Criminal Procedure under which the court claimed to act is section 238, u The court may .... discharge the panel and order another to be summoned, because : 1st. That the requisite number of ballots was not drawn from the grand jury box of the county.” This refers to the number, intending to recognize the right of parties to be passed upon by a jury made up from a full panel. This right was passed upon, so far as a petit jury was concerned, in the case of Reg. v. O’Connell; and the principle applies also to grand juries. And this discretion is vested in the court entirely. It cannot be raised by defendant. It contemplates the actual discharge of the panel, and the summoning of another in its place. A grand jury cannot stand as to one, and be set aside as to others.
    
      Andrew Hamilton, for respondent.
    I. The court had jurisdiction to discharge a panel before indictment, and to allow defendant’s objections to the array before the impaneling of the grand jury. Code of Crim. Pro. § 238. The power to discharge the panel, where the requisite number of ballots was not drawn from the grand jury box of the county, is expressly conferred by this section, if exercised before indictment. People v. Petrea, 1 N. Y. Crim. Rep. 244. The prohibition of a “challenge to the panel or array of the grand jury” does not prevent objections before the impaneling. There is no grand jury de facto or de jure until the body is sworn as such (Code Crim. Pro. § 223; People v. Petrea, supra); consequently, before that event, there is no panel of the grand jury, challenge to which is alone prohibited, but only the panel for a grand jury. By any other construction of the section the right of the defendant to be proceeded against conformably to the constitution and laws of the State would be rendered unavailable to him. Bishop Crim. Proc. § 113.
    II. The court having jurisdiction, defendant established that the requisite number of ballots was not drawn from the grand jury box of the Revised Statutes, which is a separate box used solely for the three hundred names returned by the supervisors, the list being certified by their clerk and filed with the county clerk. Therefore the requirements of the Revised Statutes were not complied with, and the court was called upon to exercise its discretion under section 238 of Code Crim. Proc.
    III. The facts presented sufficient objections to warrant the exercise? of this discretion. The proceedings up to this point had been illegal, and performed under pretended authority of an act prohibited by the Constitution and denying the right of the prisoner to be proceeded against according to the forms of law. Bishop Crim. Proc. § 89.
    IY. That a de facto grand jury may exist, though selected and drawn under an unconstitutional enactment, does not assail the order appealed from. The case of People v. Petrea did not assume to decide upon rights prior to indictment, or under section 238. The recognition by the court being essential, to make a jury summoned as this was a de facto jury (People v. Lambert, 76 N. Y. 237), and there, having been no such recognition, it was neither de facto nor de jure. Never having-become a grand jury, there could be no indictment, as in fact none appears by the record, and there is no question before the court.
    
      
       The case of People y. Petrea, referred to in the following opinions, is reported ante, pages 198 and 288, and should bo read for a full understanding of the present case.
    
   Boardman, J.

The defendant had been held to await the action of the grand jury to convene at May Term, 1883, of the Albany Oyer and Terminer. Before the grand jurors were sworn in, the defendant, by counsel, appeared, and filed a paper-containing certain objections to the grand jury, and prayed the court to discharge them. The district attorney apposed this application. It was thereupon consented by both parties that the motion should stand over, without prejudice to defendant’s rights, or to the right and duty of the court. That if an indictment should be found the objection should be considered and determined with the same force and effect as if decided prior to the organization of the grand jury.

The grand jury, then organized, found an indictment against the defendant. About.three months thereafter, an order- was made in' said Oyer and Terminer that, as to said defendant, the body impaneled as a grand jury be set aside and discharged, as of the date of the first presentation of the objections ; that the said indictment against the defendant be not received, and stand as quashed ; that such'order was to take effect as of May 7th; that nothing therein was to affect the action of said grand jurors as to persons not having made such objections.

From this order the people appeal; and counsel on each side desire that the case may bé considered and disposed of on the main question 'rather then upon any technical ground which does not dispose of the merits.

In the first place, there is an obvious inconsistency in the order. A grand jury can not be discharged as to some of the persons indicted and remain as to the others. If discharged" as to some, it must be discharged as to all. Otherwise there would, or might be, two grand juries at the same time, because -the section which provides for discharging a grand jury requires the summoning of another. Code Crim. Pro. 238.

Again, it is obvious that when a body of men, sworn and impaneled, as a grand jury, aS such have found indictment, they may be discharged as having finished their labors. But they cannot be discharged retroactively, as is attempted in this order, so that the order shall take effect as of a date prior to their action as a grand jury.

Undoubtedly the indictments found by them may, for good cause, be quashed. But that is a very different matter. Uo order of the court takeñ subsequent to the finding of the indictment can alter the fact that a body of men summoned as a grand jury were not discharged, but acted as .such, and found the indictment.

But counsel on both sides express the wish that this appeal should be considered as if the order had, in fact, been made on , the 7th of May. And, therefore, we pass over the inconsistencies above mentioned. Still they seem,to have occurred to the learned justice, because the order not only discharges the grand jury nunc pro tunc, which could not have been done, but it also quashes or sets aside the indictment; and thus we have the further difficulty, that an order, which is to take effect May 7, quashes or sets aside an indictment which had not then been found. That is, it quashes it in advance.

The learned justice well expresses in his opinion the doubt as to what the order should be.

Let us next inquire whether the order was proper so far as it quashed the indictment. The objections raised are precisely those urged in the Petrea case, 1 N. Y. Crim. Rep. 198-233; 28 Hun, 140. It was in that case held by the Court of Appeals, affirming the decision of this court and of the Court of Sessions, that, where an indictment had been found by a grand jury, drawn under this very law and in the very manner now in question, it should not be quashed on the defendant’s motion. It cannot be necessary or proper to argue that question again. Whatever else may have been said in the opinion of the Court of Appeals, that principle was absolutely decided, and such decision should govern. The Oyer and Terminer, then, should not in this case have quashed the indictment. We think the learned justice must have seen that his decision in this respect was contrary to the law of the Petrea case. For a large part of his opinion is made up of citations of authorities, principally from other states, tending to show that the decision of the Court of Appeals is wrong, and that an indictment found by a grand jury selected under an unconstitutional law, should be quashed on the defendant’s motion.

It is suggested, however, that although an indictment, after it is found, ought not to be quashed upon the ground urged in the Petrea case, yet, if these grounds were presented to the court before the indictment was found as a reason for quashing it after it should be found, then, the decision in the Petrea case would not apply, and the indictment should be quashed. But this cannot be. That decision held that no constitutional right of the defendant was invaded by holding him to answer under the indictment, although the same facts appear there as appear here. An indictment cannot be quashed before it is found. After it is found the facts now alleged present no reason for quashing it, as was decided in the Petrea case. Hence the same facts can never be a ground for quashing an indictment; because, until an indictment shall be found, a motion to quash cannot be made. But, again, this order discharges the grand jury, dr the body so called, and by agreement of counsel we are to consider the order as if it had been made May 7.

The first objection to this part of the order which is obvious is that just stated, viz : That on a motion by a person held to trial, the court assumed to discharge the grand jury as to him, and allow it to stand as to others. How could such an order be properly made at the opening of the court, or at any other time? Would the court on May 7, have summoned another, especially for this defendant? Would the court have charged the one grand jury to inquire as to all crimes except those oí Thomas Fitzpatrick, and the other to inquire as to his only ? It is plain that even when we treat this order as one made at the opening of the court, it is inconsistent with itself. Again, there are more serious objections. This paper filed by the defendant, call it by any name he may please, is really, in effect, a challenge to the array. This is a well known term, which calls for no definition. Similar objections were defined to be a challenge in the Petrea case. 28 Hun, 440 ; 1 N. Y. Crim. Rep. 198-233.

Now section 238 of the Code of Criminal Procedure forbids any challenge to the panel or to the array of a grand jury. The counsel for the defendant urges that this section does not prevent objections made before the grand jury is impaneled. But a challenge is an objection made to the swearing in and impaneling of the grand jury, not an objection made after they are sworn in and impaneled. Such has been the ordinary meaning of the word, and in that sense the legislature must have used it when it forbade challenges to the panel or array. It would be trifling to enact a section which meant that challenges to the panel or array could not be made after a grand jury was sworn in and impaneled, but might be made before.

The learned justice, however, takes another view, and thinks that the challenges to the panel or array, which are forbidden by this section, are challenges to a legal panel or array of grand jurors, and not challenges to an illegal panel. One would suppose there was not much necessity to prohibit challenges to the. panel or array of a legal grand jury. The section means just what it says. That is, that challenges or objections to the panel or array of the grand jury can no longer be taken. It was evidently thought that as the grand jury was only an accusing body it was unnecessary to give an accused person the right to make objections to the details of its selection.

If the code had not forbidden challenges of this kind, still, / under the decision of the Petrea case we do not sec how this could be allowed. If the law in question were unconstitutional this could not be asserted by a party whose rights it did not affect. Cooley Const. Lim. 163 ; People v. Brooklyn, Platbush & Coney Island R. R. Co., 89 N. Y. 75, per Finch, J. ; Pierrepont v. Loveless, 72 N. Y. 211. And the decision in the Petrea case was that the defendant’s constitutional rights were not invaded by holding him to answer the indictment, and therefore not invaded by the mode of selecting the grand jury. Friery v. People, 2 Keyes, 425.

The learned judge, however, places this order on another ground. Section 238, above cited, after forbidding challenges, provides that the court may, in its discretion, discharge the grand jury and order a new one to be summoned for any of several causes ; among them, “ that the requisite number of ballots was not drawn from the grand jury box of the county.” We can hardly understand how the order appealed from could have been made in the exercise of that discretion. Because the learned justice says in his opinion that “ whenever it plainly appears that every safeguard of law in the selection of grand jurors has been disregarded,” &c. (that is, by the enactment of the very excellent chapter 532 of the Laws of 1881), then it was a wise exercise of discretion to set aside the supposed panel and to order a new panel to be summoned. How, if this were so, the same wise discretion would seem to require that other indicted persons should be protected as well as this defendant. And it would seem an unwise exercise of discretion to grant as a special favor to this defendant the safeguard to which others were equally entitled. Yet the order, in the discretion of the court, withholds from those who have not made the objections “ the guaranties which the constitution gives to every citizen for his protection.”

It may be remarked in passing, that while in the opinion of the Court of Appeals in the Petrea case the act in question was spoken of as unconstitutional, yet it was distinctly held that the question of constitutionality could not be raised by the defendant in that case. As it could not be raised by him, it could not in that case be decided by the court. As is said by Judge Finch in People v. Brooklyn, Flatbysk & Coney Island Tí. It. Co. (89 N. Y. 92), it is our duty to decide a constitutional question only when it is directly and necessarily involved in the issue to be determined.” Whatever was said as to the unconstitutionality of the law was obiter, that is, it was not involved in the decision, and only served to encourage further efforts to thwart the criminal law.

Was, then, the discretion proper which was thus exercised by the court of Oyer and Terminer in favor of Fitzpatrick, and refused as to other accused persons ?

The Court of Appeals had held that such a grand jury was competent to find valid indictments. ■ Why, then, should the court of Oyer and Terminer set aside- this competent, jury ? The requisite number of ballots had been drawn. These ballots had been drawn from the only box and list of jurors made up in the county from which to draw grand jurors. This box and this list were in fact the grand jury box and list. It was plainly immaterial what the box was called. It held, in fact, the names selected under color of law as gj’and jurors. And there was no other box or list from which grand jurors could be drawn. This box and this list were to such extent the box and list from which to draw grand jurors, and it had been held by the Court.of Appeals that a grand jury drawn therefrom was a valid grand jury. For what possible reason or under what discretion, then, should a grand jury so drawn be set aside? Not the least objection was made to the competency or qualification of any or all of them. If the learned justice had refused to set the jury aside, the indictments found by them would have been valid and the administration of the criminal law would not have been obstructed by an objection without any real merit. We think it was not a wise exercise of discretion to set aside a body of unexceptionable men, whose competency to find indictments had been established by the Court of Appeals.

It seems to us the error which underlies nearly all of the reasoning of the learned justice in his opinion is,. that he assumes that any man may set up the unconstitutionality of a law,’ although it does not affect his rights or subject him to any wrong. This is carried a step further in assuming that it is a wise discretion to set aside a body of competent officers against the mode of selection of whom, even if it be illegal, no one has the right to set up any objection.

Ho objection is made by the defendant to the right of the People to appeal from the order, and so that subject is not considered.

The order appealed from should be reversed.

Learned, P. J., concurs.

Bockes, J.

I think the order should be reversed. It was, 1 as I think, improper to quash or set aside the panel as to Fitzpatrick, yet in effect hold it good as to all other persons charged with crime who omitted to interpose objections, inasmuch. as the objections raised a question of jurisdiction. If the panel was without jurisdiction as to Fitzpatrick’s case, it was equally without jurisdiction as to all others similarly charged.

But we are asked to consider the case on the merits, just as it was examined in the court of Oyer and Terminer, to raise the validity of the objection urged against the panel by Fitzpatrick, as regards the mode of drawing, summoning and impaneling the grand jury. This question is, I think, settled against Fitzpatrick by this court, and by the Court of Appeals, in the Petrea case.

It was held in that case that the objections here urged in Fitzpatrick’s behalf could not be maintained by one charged with a criminal offense, further than to see that the action or proceeding challenged as irregular and void was taken" under the color of lawful authority / and, as was said in the case cited it would not alter the case even if such action involved some proceeding of an officer or of officers taken under an unconstitutional law; the.court would still retain this jurisdiction over the matter and the proceedings. The authorities upholding this conclusion are cited in Petrea’s case, as well in this court as in the Court of Appeals. It was said in the latter court, in answer to the objections here urged, that an indictment found by a body drawn, summoned and sworn as a grand jury, before a competent court, and composed of good and lawful men, fulfill the constitutional guaranty that a jury so formed was a de facto jury, because selected and organized under the forms of law; that a defect in its constitution, owing to the invalidity of a law under which a panel was drawn, affected no substantial right of one charged with crime ; hence an objection based thereon was not available to him. So it was held “ that an indictment found by a grand jury of good and lawful men, selected and drawn under color of law, was a good indictment by a grand jury within the sense of the constitution, although the law under which the selection was made was void.” It would seem to follow that if an indictment, when found, would be good and valid, it could hardly be maintained that the grand jury which found it acted without jurisdiction or authority in the premises. I am of the opinion that the decision in the Petrea case determines all questions presented on this appeal against the objections urged in the Oyer and Terminer in Fitzpatrick’s behalf. It follows that the order appealed from should be reversed.  