People v. Petrea

defendant was indicted at the September term of the Albany county. sessions, 1881, for the crime of grand larceny, committed on August 2, 1881. He was arraigned at the March term, 1882, and on his arraignment filed a special plea, setting forth in substance, that the grand jury which found the indictment was not a legal grand jury, for the reason that it was not drawn from any list of grand jurors selected by the shpervisors of Albany county, but. from a list of petit jurors, pursuant to chapter 532 of the Laws of 1881, which act is alleged in the plea to be unconstitutional, in that it is a local act for selecting and drawing grand juries in the city and county of Albany, and was not reported to the legislature by commissioners appointed to revise the statutes, and was passed in contravention of article 3, section 18, of the constitution, adopted in 1874, which forbids the passing by the legislature of a private or local bill, in certain .enumerated cases, and among others, for “ selecting, drawing, summoning or impaneling grand or petit jurors.” The defendant accompanied his plea with an offer to prove the facts stated in the plea, and especially to prove by the clerk of the senate, by the commissioners appointed to revise the statutes, by the journal of the legislature of 1881, and by the original act itself, that the act was not reported to the legislature by any commissioner or commissioners appointed to revise the statutes.

The court overruled the plea and offer of proof, and the defendant’s counsel thereupon moved the court to set aside the indictment upon the grounds set forth in the special plea, and

It will contribute to a clear understanding of the question raised in respect to the constitutionality of the act of 1881, to have in view the laws in force at the time of the passage of that act, regulating the selection of grand and petit jurors in the county of Albany. Prior to the act of 1881, grand jurors in the county of Albany were selected under the general provisions of the revised statutes. The list was prepared by the supervisors of the county (2 R. S. 720, § 1, et seq.) and was returned by them to the county clerk, who placed the names in a box, from which, from time to time, prior to the terms of the courts, the names of twenty-four persons were drawn, to serve as grand jurors. The petit jury list was also made up in accordance with the system prescribed by the general statutes for the selection of petit jurors in the counties of the state, with a single exception, viz.: the selection of persons in the city of Albany, to serve as petit jurors, instead of being made by the supervisor, assessors and town clerk, as provided in case of towns, was made by the supervisor and assessor of the respective wards, each ward being for that purpose considered as a town. This method of selecting petit jurors in the city of Albany, was first prescribed by the revised statutes (2 R. S. 413, § 23) and the provisions of the revised statutes upon that subject as to the city of Albany, were incorporated into the Code of Civil Procedure, passed in 1876, in the article relating to the mode of selecting, etc., trial jurors, as section 1041.

The next legislation on the subject of grand and petit jurors

It is a part of the legislative history of the state, that prior to the adoption of the constitutional amendments of 1874, commissioners to revise the statutes, had been appointed by the legislature, who had from time to time made reports of their proceedings to that body, and when the constitutional amendments were adopted, they had not completed their labors, but were still engaged in the work of the revision.

The plain object of section 25, article 3, which was one of

If the proof offered by the defendant in support of his plea, was admissible, and the facts offered to be proved, were established, there can be no doubt that the part of the act of 1881, relating to the selection and drawing of grand jurors in Albany county, is unconstitutional. The intention of the act was to take Albany county out of the operation of the general statutes of the state, relating to the selection and drawing of grand jurors, and to substitute for that county a special system, applicable to that county alone. But it is insisted by the counsel for the people that the unconstitutionality of the act cannot be established by proof aliunde that the act was not reported to the legislature by commissioners. We have no doubt that the presumption in favor of the constitutionality of statutes, applies in this case, and that in the absence of proof to the contrary, it will be presumed in support óf the constitutionality of the act of 1881, that it originated in a bill reported by commissioners. But the question whether a statute is constitutional, is in its nature a judicial one. The question most frequently arises upon the face of the statute itself, and the question of constitutionality is determined by comparing the statute with the constitution. But it often depends upon extrinsic facts, not appearing upon the statute book. In cases involving the constitutionality of what are known as two-third bills, it has been held that the court may go behind the statute book, and look at the original

The case here is of the same nature, but arises upon a different limitation of legislative power. The proof offered did not contradict any facts asserted on the face of the statute, nor so far as appears in any legislative record. On the contrary, the offer was to show by the journal of the legislature, and by the original act, the facts averred in the plea. The constitution would afford very slight protection against legislative usurpation, and the object sought to be accomplished by the amendment in question, could be easily frustrated, if the mere fact that the legislature had passed a local or private bill in one of the enumerated cases, created a conclusive presumption that the bill was originally reported by commissioners, and was within the exception of section 25. The tendency of judicial authority supports the- proposition that whenever a question arises as to the constitutionality of a statute, the court may resort to any source of information which in its nature is original evidence of any fact relevant to the inquiry. Purdy v. People, 4 Hill, 384 ; Gardiner v. Collector, 6 Wall. 499 ; Post v. Supervisors, 105 U. S. 667 ; Berry v. Baltimore, &c. R. Co., 41 Md. 446 ; Opinion of Justices, 52 N. H. 622 .

This rule excludes all inquiry as to the motives of the legislature in passing the particular statute. Such an inquiry is wholly irrelevant, the only inquiry permitted being whether the enactment, the constitutionality of which is assailed, is forbidden by the constitution.

We think the offer to prove by the journal of the legislature and by the original act, that the act of 1881 was not reported by commissioners, was improperly overruled, and as the fact alleged must be deemed on this appeal to have been proved, the conclusion that the act so far as it relates to the selection and drawing of grand jurors, is unconstitutional, cannot be avoided.

The question of the constitutionality of the act of 1881, so far as it relates to the selection of petit jurors, depends upon different considerations. When the act of 1881 was passed, there was a local act then in existence, regulating the selection of petit jurors in Albany county. By the existing law, which was

We think it would be too strict a construction of the constitutional provision, to hold that no existing local law upon one of the subjects mentioned in article 3, section 18, of the constitution, can be amended in any detail,’ without violating the constitution. This question was considered to some extent by this court in the Rapid Transit cases. 70 N. Y. 327 , 361. In the case first referred to, Eabl, J., referring to the section of the constitution now in question, said-, “ these constitutional provisions do not prohibit a private or local bill to amend the charter of private corporations, by regulating powers, rights, privileges and franchises which it previously possessed,” and in the case last

The act of 1881 in reference- to- petit jurors, is not we think within this principle. It did not inaugurate a local system for the selection of petit jurors in the city of Albany, but, as we have said, continued an existing' one, changing it in one- of its-details. Special laws have been passed, and are now in force), regulating the selection of jurors- in the counties of New York and Kings. These laws extend to- great detail, and contain many special provisions. It would- be a dangerous construction of the constitutional provision which would prohibit any alteration in those and like statutes, and p-lace it beyond the power of the legislature to amend any of their provisions.

The question before us is not free from difficulty, but one eonelusion is that a reasonable and practical construction of the epnstitution upholds the act of 188-1 in- respect to the substitution of the recorder in place of- the supervisors and assessors, to discharge the duty of preparing the petit jury lists, and that this conclusion fairly rests on the ground that the act is not in a proper sense an act for the selection of petit jurors, but a regulation of an existing local law on the subject, within the purview of the constitutional prohibition.

The next question which arises is whether the arraignment and trial of the defendant upon the indictment in question, was a violation of the constitutional guaranty that no- person shall be held to answer for a capital, or otherwise infamous crime (except in certain cases mentioned, not material to- the present inquiry), “ unless on presentment or indictment of a grand jury.” Const, art. 1, § 6. It is insisted on the part of the defendant that the body of men which found the indictment in question, was ne-t a grand j¡u-ry, that the paper filed- as an in

The principle that no person shall be put upon trial for an infamous crime unless on presentment -or indictment of a grand jury, has been regarded as one of the securities of civil liberty, and is embodied among the fundamental provisions of the federal and state constitutions. The institution of the grand jury has been said by high authority to be one of the barriers between the liberties of the people and the prerogatives of the crown. 4 Blk. 346. The interposition, of a body of competent citizens charged to inquire of offenses between the individual and the finding of .a formal accusation upon such inquiry, before he can be put upon his trial for an infamous crime, forms the substance -of the right guaranteed by the law of England, and by the constitution of the state. But the constitution -does mot define what shall constitute a grand jury. It refers to the grand jury as an existing institution, audits essential character must be found by reference to the common law, from which it has been derived. By the common law a grand jury must consist of not less than twelve, nor more than twenty-three, and twelve must concur in finding an indictment; and they must be good and lawful men of the county. Hawk. P. C. vol. 2, ch. 25, § 16; Chitty's Crim. Law, vol. 1, 307. The constitution does not define the mode of selection,

We are of opinion that no constitutional right of the defendant was invaded by holding him to answer to the indictment. The grand jury, although not selected in pursuance of a valid law, were selected under color of law and semblance of legal authority. The defendant in fact enjoyed all the protection which he would have had if the jury had been selected and drawn pursuant to the general statutes. Nothing could well be more unsubstantial than the alleged right asserted by the defendant, under the circumstances of the case. He was entitled to have an indictment found by the grand jury, before being put upon his trial. ' An indictment was found by a body, drawn, summoned and sworn as a grand jury, before a competent court, and composed of good and lawful men, This we think fulfilled the-constitutional guaranty. The jury which found the indictment was a de facto jury, selected and organized under the forms of law. The defect in its constitution, owing to the invalidity of the law of 1881, affected no substantial right of the defendant. We confine our decision upon this point to the case presented by this record, and hold that an indictment found by a grand jury of good and lawful men selected and drawn under color of law; is a good indictment by a grand jury within the sense of the constitution, although the law under which the selection was made, is void. It will be time to consider the extreme cases suggested by counsel, when occasion shall arise.

The remaining question relates to the right of the defendant to avail himself by plea, or objection in other form, of the defect in the proceedings in selecting or drawing the grand jury which found the indictment. If the defect in the constitution

The paper filed by the defendant was not a plea authorized by the section last mentioned,, and the motion to quash or set aside the indictment,, is not for any cause embraced in section 313. The Code by defining the causes- for which the indictment may be set aside, must by the general rule of construction, be held to exclude the entertaining of the motion for other causes than those specified. The intention of the Code was to discourage

We think the objection to the grand jury was not one which, by the new procedure, the defendant could take after indictment, and, as it involved no constitutional right, that it was properly overruled.

These reasons lead to an affirmance of the judgment

All concur.