Buchler v. District Court , 158 Colo. 205 ( 1965 )

Mr. Justice McWilliams

delivered the opinion of the Court.

In an original proceeding in this court Buchler seeks to prohibit the district court in and for the County of Arapahoe from proceeding further in a criminal proceeding now pending in that court wherein Buchler, by grand jury indictment, is charged with unlawfully exercising an office in violation of C.R.S. 1963, 40-7-37. Buchler contends that the respondent court and the judges thereof are without jurisdiction to hear and determine the matter because of “serious irregularities and improprieties in the operation of the grand jury” which indicted him.

Specifically, Buchler contends that — as of the date the indictment was returned — the grand jury which indicted him was an irregular and illegal body, for the reason that prior thereto it had “expired with the term of court in which it was summoned.” Buchler also asserts that the indictment is invalid and subject to a motion to dismiss for the additional and further reason that certain unauthorized persons were permitted to attend sessions of the grand jury which was investigating him and his activities. These “unauthorized” persons were two special investigators then serving in the office of the district attorney for Arapahoe County and a court reporter who was in attendance for the purpose of recording the proceedings of the grand jury.

The following chronology will perhaps serve to point up Buchler’s primary contention, as well as to put the controversy in better focus:

1. the first term of court in Arapahoe County for the calendar year of 1964 commenced on February 4, 1964;

2. the statutory grand jury provided for by C.R.S. 1963, 78-6-1, which jury eventually returned the indictment against Buchler, was impaneled and sworn in on March 17, 1964;

3. the first term of court in Arapahoe County for 1964 ended on October 13, 1964, on which date the second term of court for 1964 commenced;

4. this second term of court for 1964 in Arapahoe County ended on January 19, 1965, at which time the 1965 term of court commenced;

5. on January 22, 1965, upon motion of the district attorney the respondent court entered a written order, back-dated to January 12, 1965, continuing the grand jury for 60 days;

6. on March 12, 1965, upon further motion of the district attorney the respondent court entered an order continuing the grand jury to March 25, 1965;

7. on March 26, 1965, upon motion of the district attorney the respondent court entered an order continuing the grand jury to April 5, 1965; and

8. on April 5, 1965, the 1964 statutory grand jury made its formal report to the respondent court and at the same time returned an indictment against Buchler, whereupon the grand jury by order of court was discharged from further service.

Buchler filed in the respondent court a motion to dismiss the indictment, contending that the indictment was void and invalid and that the trial court was without jurisdiction to hear the matter because of these alleged irregularities in connection with the grand jury. This motion the trial court denied and it was at this juncture that Buchler instituted an original proceeding in this court.

It is Buchler’s basic position that the grand jury which indicted him “expired” at the end of the term of court in which it had been impaneled, ie., October 13, 1964. According to Buchler, the respondent court was without power and authority to extend the life of the grand jury beyond October 13, 1964; but he then goes on to argue that even if the respondent court did have such power and authority it nevertheless failed to enter any formal order purporting to extend the life of the grand jury till January 22, 1965 — at which time the grand jury had been “dead” for some three months. It is claimed that a “dead” grand jury cannot be revivified in this fashion. It is further pointed out that the district attorney’s motion of March 26, 1965, was filed one day after the grand jury had expired under the purported order of March 12, 1965.

Respondents counter with the argument that under the circumstances the grand jury which indicted Buchler did not expire on October 13, 1964, but on the contrary continued, at least as a de facto body, until it was formally discharged by appropriate order of court on April 5, 1965. With this general position we are in accord.

At the outset it should be observed that we are not here concerned with what is sometimes referred to as a “special” grand jury, but only with the statutory grand jury provided for by C.R.S. 1963, 78-6-1 through 7. Our attention has not been directed to any statute which specifically fixes the length of time for which a statutory grand jury may lawfully sit, though the applicable statute does fix the time when such grand jury shall be impaneled. In this regard, C.R.S. 1963, 78-6-1 provides as follows:

“Time of drawing—classification.—Grand juries shall not be drawn, summoned or required to attend the sitting of any court in any county in this state unless specially ordered by the court having jurisdiction to make such order. In counties of the first class the court shall cause to be drawn and summoned a grand jury to attend at the sitting of such court at the first term of such court in each year, and in all other counties it shall be in the discretion of the court to call a grand jury or not. For the purpose of this section all counties and every city and county having a population of one hundred thousand inhabitants and over shall be classified as counties of the first class.”

As already noted, Buchler claims that the respondent court was powerless to authorize the grand jury to serve even one day after October 13, 1964, but that even if it be determined that it is possessed of such power, the respondent court in fact did not in apt time thus extend the life of this grand jury. In support of this general proposition Buchler cites, among other authorities 38 C.J.S. p. 1023, wherein it is stated that in the absence of a statute to the contrary, “the life of a grand jury terminates at the expiration of the term of court for which it is summoned.”

There is admittedly a diversity of judicial thought on this particular subject. Some jurisdictions hold that a grand jury becomes in effect functus officio on and after the last day of the term of court in which it was organized; and furthermore that in the absence of express statutory authority to so do, the trial court is powerless to extend the life of the grand jury beyond the term of court in which it was impaneled. See Ex parte Frye, 173 Kan. 392, 246 P.2d 313.

Other jurisdictions, however, hold that where a lawfully impaneled grand jury holds over into a term of court subsequent to the one in which it was organized, and at such succeeding term of court is still recognized by the court as a lawful body, it is a good and sufficient grand jury de facto and that indictments returned by it are not void, but valid; and that such is especially true where a de jure grand jury has not in the meantime been impaneled. For an annotation of this subject, see 75 A.L.R.2d 544.

A timely order of court extending the life of a grand jury is perhaps the best evidence that a trial court is recognizing as a lawful body a grand jury which holds over into a term of court subsequent to the term in which it was organized. However, though the trial court in the instant case did not in every instance extend the life of the grand jury by timely order, the fact that it entered such orders nonetheless indicates that the trial court still recognized the grand jury as being a legally constituted body. Furthermore, on April 5, 1965, the respondent court accepted the indictment here in question, which is a further indication that the trial court recognized the grand jury as being a lawfully constituted body. It was on this date that the grand jury was discharged by appropriate order. And, finally, it is to be noted that as of the date when the 1964 grand jury returned the indictment against Buchler the 1965 grand jury had not yet been impaneled. Under all of these circumstances we now hold that the indictment against Buchler is not void merely because the grand jury returned the same at a term of court subsequent to- the term in which it was organized.

In support of the foregoing see State v. Noyes, 87 Wis. 340, 58 N.W. 386, wherein the Supreme Court of Wisconsin declared as follows:

“It is contended that this body became functus officio as a grand jury on and after the last day of the September term. It was recognized by the court as a lawful grand jury, and the court received the indictments found by it, and finally discharged it from further service, and ordered the payment of its fees. The legal grand jury of the September term simply held over its term. There cannot be a more appropriate application of the de facto doctrine than to such a body as a grand jury de facto while thus holding over and doing business in the October term of the court. This doctrine, in its application to public officers and their acts, is well understood.”

See also in this regard, People v. Hall, 16 Ill.2d 223, 157 N.E.2d 26; People v. Morgan, 133 Mich. 550, 95 N.W. 542; and State v. Wescott, 194 Wis. 410, 217 N.W. 283.

Buchler goes on to argue that the indictment is also subject to a motion to dismiss for the further reason that certain “unauthorized” persons were permitted to attend sessions of the grand jury at a time when he was himself testifying before that body. As already mentioned, these allegedly “unauthorized” persons were two investigators then apparently serving on the district attorney’s staff, as well as the court reporter who was in attendance at all sessions of the grand jury. Again, there is a diversity of judicial expression as to whether the presence of unauthorized persons at sessions of a grand jury vitiates its indictments. In this regard, see 4 A.L.R.2d p. 394, where the prevailing rule is said to be that the presence of unauthorized persons during grand jury proceedings is, at most, a mere irregularity, not sufficient to constitute a ground for setting aside the indictment returned by the grand jury unless prejudice is shown. In the instant case it should be noted that there is no suggestion that these “unauthorized persons” were present during the deliberation of the grand jury, just that they were merely present when he was being examined by that body. We therefore conclude that the indictment is not invalid because of the presence of these persons during the sessions of the grand jury. In support of this conclusion, see also People v. Hartenbower, 283 Ill. 591, 119 N.E. 605; State v. Bates, 148 Ind. 610, 48 N.E. 2; and Commonwealth v. Brownmiller, 141 Pa. Super. 107, 14 A.2d 907.

The foregoing should not be construed as indicating that we approve of the presence of investigators, special or otherwise, at sessions of the grand jury when others are being called to testify. On the contrary we do not look with favor upon such a practice. Rather, in the instant case we are simply holding that the mere presence of unauthorized persons of this type, does not void an otherwise valid indictment.

It is for these reasons that we conclude that the indictment in the instant case is not possessed of the infirmities perceived by Buchler and that the respondent court does have jurisdiction to proceed in the premises.

The rule to show cause is therefore discharged.

Mr. Justice Frantz and Mr. Justice Schauer dissent.

Mr. Justice Moore specially concurs.