The People v. Lieber , 357 Ill. 423 ( 1934 )

I concur with the judgment entered herein and with the conclusion of the majority opinion that the statutes relating to the manner of selecting a grand jury are directory and not mandatory. I do not concur with the construction of the Jury Commissioners act adopted in the majority opinion.

It is said that to so construe the Jury Commissioners act as to permit the drawing of more than 23 names from the grand jury box in the manner followed in this case would render it unconstitutional. People v. Onahan, 170 Ill. 449, is interpreted as in effect so holding. That opinion cannot be so construed. The question there raised was whether the Jury Commissioners act contravenes section 29 of article 6 or section 22 of article 4 of the State constitution. It was directly held that it did not violate either of these sections. The attack on the constitutional ground first mentioned was based on the claim that it provided a different proceeding or practice in the courts of counties of more than 250,000 inhabitants from that obtaining in other courts of the same grade, and therefore violated the constitutional requirement of uniformity in the organization, jurisdiction, powers, proceedings and practice of courts of the same grade. It was held, however, that it did not change any of the powers, proceedings or practice of the court by the selection from the body of the county of a jury list from which a grand jury is to be drawn. Surely the provisions of section 9 of the act empowering the judge to certify the necessary number of names to be drawn and the drawing of more than 23 names of citizens from whom a grand jury is to be impaneled can no more be said to be a different practice and procedure for courts of the same grade than can the difference pointed out in the attack in theOnahan case and which is there held to be not a violation of the constitution. In fact, the method here used* to impanel the grand jury can scarcely be said to be so radical a change as that sustained in the Onahan case. It was also in that case held that the act does not contravene section 22 of article 4 of our constitution, prohibiting local or special laws regulating the practice in courts of justice or summoning and impaneling grand or petit juries.

The Jury Commissioners act provides, and, as pointed out in the Onahan case, was intended to provide, a different method for selecting a grand jury in counties of more than 250,000 population. It supersedes, and was intended to supersede, those sections of the Jurors act applicable only to counties with 250,000 population or less. The Jury Commissioners act does not prescribe the number to be drawn. Section 9 of that act as in force at the time this grand jury was drawn, provided that one or more of the judges certify to the clerk of the court "the number of petit jurors required each month," and that the clerk shall repair to the office of the commissioners and in the presence of persons mentioned in section 8 of the act proceed to draw by lot "the necessary number of names from those made available for such drawing as in section 8 of this act provided," and if more jurors are needed during the month a judge of the court shall so certify, and "they shall be drawn and certified forthwith in the manner above provided." It is also provided in that section: "Whenever a grand jury is required by law or by order of the court, it shall be drawn and certified in like manner." I am unable to follow the reasoning of the majority opinion that this language cannot be construed to refer to the number of prospective grand jurors to be drawn from the box, as well as to other provisions concerning the drawing. "Certified in like manner" must be construed to provide for a certificate of the presiding judge directing the clerk of the court to draw from the box kept for that purpose the number of names "required" for the purpose of impaneling a grand jury. The clerk shall, as in the case of drawing petit jurors, draw by lot "the necessary number of names." These are the provisions concerning the drawing of grand jurors. Nowhere does the act provide the number which shall be drawn, but the "necessary number" must mean a number sufficient to insure the ultimate selection of a grand jury of 23 persons. The clear intendment of the language of sections 8 and 9 of the Jury Commissioners act is, that the judge shall certify the number necessary to be drawn. Had it been the legislative intent that but 23 should be drawn the act would have so specified, as is done in the Jurors act governing the selection of a grand jury in counties of 250,000 population or less.

The Jury Commissioners act does not purport to amend the Jurors act or any other act. It is entitled, "An act in relation to jury commissioners and authorizing judges of courts of record to appoint such jury commissioners and to make rules concerning their powers and duties." (Cahill's Stat. 1931, p. 1754.) It provides a different method of drawing and filling a panel of grand jurors from that provided in the Jurors act. They are not to be selected — they are to be drawn. If more are needed to secure a grand jury they likewise are drawn from the box. Unlike the provisions of the Jurors act, neither the county board nor the sheriff selects them or calls them from the body of the county. They are drawn from the box by lot or chance. Surely such a plan cannot be said to so readily lend itself to "hand-picking" a grand jury as under the Jurors act, where the grand jury is selected by the county board and vacancies are filled by a selection by the sheriff of such persons as he may choose. Can it be said that it was intended by the General Assembly that a system so radically different from that provided in the Jurors act shall nevertheless be controlled by that act as to the preliminary matter of determining the number to be drawn for the purpose of impaneling a grand jury? Had the General Assembly so intended it would have been a simple matter to say so, and it is but reasonable to conclude that it would have so provided. Not having so said, it is clear that it did not so intend. Our constitution contains no direction as to the number of persons to be drawn for such service or the manner in which they shall be drawn. Nor is there anything in the nature of a grand jury as known at common law which requires that the number drawn be limited to 23 persons. The common law of England as it existed prior to the fourth year of James 1, (1610,) is by statute declared to be in full force in this State where applicable, unless changed by statute. (Cahill's Stat. 1931, chap. 28, sec. 1.) At common law a grand jury, when impaneled, consisted of 23 persons, but upon the order of the court the sheriff was to return into court 24 or more persons out of the whole county out of which the grand jury were taken. Hale's Pleas of the Crown, 154.

In 1 Chitty on Criminal Law, pages 310, 311, it is said: "Upon the summons of any sessions of the peace, and inthe cases of commissions of oyer and terminer and gaol delivery, there issues a precept, either in the name of the king or of two or more justices, directed to the sheriff, upon which he is to return 24 or more out of the whole county, namely, a sufficient number out of every 100, from which the grand jury is selected. Upon this precept, although it generally specifies only 24, the sheriff usually returns 48. * * * Though the number of jurymen thus returned to the court amount to 48 or more, not more than 23 are to be sworn. * * * At the sessions it is not an unusual practice, after 15 or 16 names have been called, to consider the inquest complete and not to insist upon the service of the rest who may happen to be in attendance." To the same effect are 3 Bacon's Abridgment, (ed. of 1794, p. 232); 2 Hale's P. C. 154; Lesser's History of Jury System, p. 148; Thompson Merriam on Juries, sec. 483; People v. McKay, 18 Johns. (N.Y.) 214, 215.

In United States v. Mitchell, 136 Fed. 896, where the Circuit Court of Appeals had before it the question of the validity of a grand jury which was impaneled from a summons for 30 persons, the indictment returned by a grand jury of 23 selected from such number was sustained, and the practice of calling more than the 23 to be impaneled was approved as in the interest of expedition in the organization of the grand jury. And inStevenson v. State, 69 Ga. 68, People v. Harriot, 3 Park. Crim. (N.Y.) 112, State v. Watson, 104 N.C. 735, and Lowrance v.State, 4 Yerg. (Tenn.) 147, it was held that it is immaterial and does not affect the legality of the grand jury if more than 24 persons are summoned to appear as such jurors. Such practice was recognized in New England States generally. (Wharton on Crim. Law, book 1, sec. 464.) At common law a grand jury, when impaneled and composed of any number from 12 to 23, was considered a legal grand jury. (State v. Symonds, 36 Me. 128;Norris v. State, 3 Greene, (Iowa) 513; Wharton on Crim. Law, book I, sec. 465; People v. Brautigan, 310 Ill. 472; Blackstone's Com. 302; 1 Chitty on Crim. Law, 310, 311. It is therefore apparent that at common law it was not required that the number returned be limited to 23, but, on the contrary, the universal practice was otherwise. In a county such as Cook, with a large shifting population, it is essential to the expeditious administration of justice that the court be permitted to summon more than 23 prospective grand jurors, else it may well be that the grand jury cannot be impaneled on the first day of the term, as required by law. I am of the opinion that such was the purpose of the General Assembly in the enactment of the Jury Commissioners act. It is true that for reasons of public expense a judge should not order drawn a greater number than experience shows necessary to insure the impaneling of a grand jury without delay. The law holds no prohibition against the return of more than 23 persons from whom a grand jury is to be selected, and the method followed in this case was not for this reason contrary to the statute.

Mr. JUSTICE DEYOUNG joins in this special concurrence.