Manion v. People

Greek, P. J.

The only question necessary to be considered and determined by this court is whether the Circuit Court erred in refusing to quash the indictment. Appellant contends such error was committed, because “ the grand jury which found the bill of indictment were not selected by the board of supervisors of Jefferson county, Illinois, as required by statute, as appears by the records of said board,” and because “twelve members of said grand jury, which returned said bill, did not vote for nor concur in finding said bill.”

Sec. 9 of Chap. 78, Starr & C. Ill. Stat., p. 1419, is the section providing for drawing grand jurors. It prescribes the duty of the county board to select twenty-three qualified persons to serve as grand jurors, and to cause their clerk to certify the names of those persons to the clerk of the court for which they are selected, who shall issue and deliver to the sheriff a summons commanding them to appear and serve as grand jurors, at the qourt and term named in said certificate.

By virtue of this section, the certificate of the county clerk is made something more than a mere paper in which the action of the board is recited. It is filed in the office of the circuit clerk, and is then evidence of record, and the only evidence furnished the circuit clerk of the fact that certain persons named therein have been selected by the county board to attend and act as grand jurors. It is not required that he should be informed by a transcript of the record of the proceedings of the board that such selection has been made, but the certificate itself informs him of the facts which make it his duty and give him authority to issue the summons for the persons therein named, to attend and serve as grand jurors. Entertaining this view of the character and effect given by the statute to such certificate, we can not hold, as requested on behalf of appellant, that the omission of the county clerk to record the act of selecting these grand jurors among the other proceedings of the board at its special meeting in March, 1887, has closed the door against proving that act, and establishes the fact, tlie persons who were impaneled, sworn, and as a grand jury returned the indictment against appellant were not selected by the board of supervisors of Jefferson county; but are of opinion the said certificate of the county clerk, delivered to and filed with the circuit clerk, was competent evidence, and by it the fact that said board, at its special meeting in March, 1887, did select the grand jury which found the indictment against appellant was fully proven, and hence the first reason suggested for quashing said -indictment is not tenable.

The Second and only other reason urged in support of said motion is, that the requisite number of grand jurors did not vote for nor concur in finding the bill, and upon this point we have been favored by the learned'counsel for appellant with a very able argument, fortified by numerous authorities, including decisions of our Supreme Court, to sustain the position that in support of a motion to quash an indictment for such reason, grand jurors are competent witnesses to prove the fact that twelve of their number did not concur in finding an indictment; but if we concede this to be the law, the affidavits in this record do not state facts, which, taken in connection with other facts disclosed by the record, would justify the court in quashing the indictment. The provision of the statute which it is claimed these affidavits show to have been violated, is correctly quoted in the brief for appellant and isas follows: “ In finding a bill of indictment at least sixteen of the grand jury shall be present, and at least twelve of .them shall agree to the finding.” Mo mode of signifying assent is here prescribed, no vote is required, and in the affidavit of the six grand jurors the affiants carefully refrain from stating that twelve of the grand jurors never did agree to the finding, but say that at one time when a final vote was taken in the grand jury room, and twenty-one of the grand jurors were present, only seven voted in favor of finding the indictment a true bill, and the remaining fourteen either refrained from voting at all or voted against such finding, and the affidavit of the bailiff states the same in substance, except that he deposes without qualification, the remaining fourteen voted against such finding. Waiving comment upon the contradictory statements thus appearing in these affidavits, and admitting that fourteen members of the grand jury voted against the finding at that time, it is not thereby made to appear this action terminated, the consideration of the question, or that twelve members did not afterward, and before the indictment was returned, agree to the finding and signify their assent thereto by some mode other than a formal vote. In addition to this, it is shown by the record the grand jury appeared in open court and returned this indictment indorsed a true bill, and no member thereof is shown to have manifested dissent or made objection. This action, though not conclusive evidence that at least twelve of the grand jurors then present had agreed, creates a presumption that they had done so much stronger than any inference to the contrary that can he fairly drawn from the statements in the affidavits, and we think appellant has failed to prove the material fact that twelve members of the grand jury did not agree in finding said indictment a true bill, and the court did not err in refusing to quash the same.

The judgment is affirmed.

Judgment affirmed.