concurring.
T1 The guarantees of our Bill of Rights regulating the composition of grand and petit juries are essentially directed to the deliberative character and function of those bodies in the exercise of their fact-finding powers. Thus, we have held that a body composed of thirteen qualified jurors which deliberates and returns a verdict in a criminal trial is not a "jury" guaranteed by Article II, § 19. Brigman v. State, 1960 OK CR 18, 14, 350 P.2d 821, 322-328. Neither is a body of eleven qualified jurors empowered to deliberate and render judgment, unless the defendant waives the constitutionally required composition. Swift v. State, 1973 OK CR 240, ¶3, 510 P.2d 286, 287.1 The same has *407been said of laws regulating the composition of grand juries. Unmited States v. Haskell, 169 F. 449 (E.D.Okla.1909)(finding indict, ment by 21-person grand jury when territorial statutes required grand jury of 16 was ex post facto ), citing Harding v. State, 22 Ark. 210, 1860 WL 805 (Ark.1860) (under law requiring grand jury of 16 persons, indictment returned by jury of 17 persons must be quashed); see also State v. Hawkins, 10 Ark. 71, 1849 WL 561 (Ark.1849), discussed infra.
{2 The suggestion that the twelve-person grand jury of our Constitution has three "built-in alternates" is untenable, and this is shown by the earliest authorities. In Commonwealth v. Cherry, 2 Va.Cas. 20, 4 Va. 20, 1815 WL 882 (Va.1815), the General Court of Virginia considered whether a plea in abatement was allowed against an indictment returned by a grand jury, one of whose number was an alien and thus disqualified by law. Consulting the common law authorities in the venerated treatises of Matthew Hale and William Hawkins,2 the Court concluded that the English-born juror "Edward Slater, in the record of the said proceedings mentioned, was not a good and lawful Grand Juror, and that the said Presentment is not a good one." Id., 4 Va. 20, 1815 WL 382 at * 3. Allowing the defendant's plea to quash the indictment for this reason was "the long established practice of the country, approved by the experience of several ages, and supported by the concurrent opinions of those two great Commentators on Criminal Law." Id.3
T3 Article II, Section 18 of the Bill of Rights mandates the grand jury "shall be composed" of twelve persons, at least nine of whom must concur to return a true bill of indictment. From its undoubted origins in English common law, this language refutes the premise of built-in alternates, because a body "composed of" eleven, ten, or nine grand jurors is not a "grand jury" that may deliberate and return an indictment in accord with the Oklahoma Constitution. Eleven qualified grand jurors is a gathering, not a "grand jury." Harding, supra, 22 Ark. 210, 1860 WL 805 at *2, citing Hawkins, 10 Ark. 71, 1849 WL 561.4
14 In State v. Hawkins, id., a defendant moved to quash an indictment and showed that two of the sixteen regular grand jurors were disqualified from service. The State answered that the fourteen remaining jurors were qualified, any twelve of whom could have returned an indictment, and that all fourteen of the qualified jurors concurred in the indictment. The Supreme Court of Arkansas held that where the law required sixteen qualified men to constitute a grand jury, though "an indietment may be found by the concurrence of not less than twelve yet the pamel must consist of sixteen lawful men." 10 Ark. 71, 1849 WL 561, at *1 (emphasis added).
15 This right to a deliberative body composed of twelve qualified persons-probi et *408legales homines in the words of Lord Chief Justice Hale-engaged in the fact-finding role, is the quintessence of the grand and petit "jury" guaranteed by the common law and Article II, Sections 18 and 19 of the Oklahoma Constitution. Our predecessors said as much in Viers v. State, 1913 OK CR 250, 10 Okl.Cr. 28, 36-37, 134 P. 80, 84:
The grand jury must be selected, drawn, and impaneled as provided by law. The grand jury does not by our law consist of 12 men congregated by the mere order of the court. It consists of 12 men selected, drawn, and impaneled according to the requirements of the law, and if the law is not followed, it is an incompetent grand jury. (emphasis added).
Nothing could be further from the recently improvised notion of built-in alternates. Indeed, Scribner v. State, 1913 OK CR 131, 9 Okl.Cr. 465, 503, 132 P. 933, 947, shows that the common law meaning of Section 18 was well understood by our predecessors: to il-Tustrate proper pleading, Seribner alluded to a defendant's claim that he was "indicted by a grand jury composed of either more or less than 12 men, or that nine members of the grand jury had not concurred" as the kind of constitutional violation that could be properly presented in a motion to set aside the indictment. See also Parrish v. Lilly, 1993 OK 80, ¶15, 883 P.2d 158, 162 (even where nine jurors may render judgment, the parties' right to jury trial is the right to a "decision, whether for them or against them, based on the honest deliberations of twelve qualified individuals ")(emphasis added).
T6 We see a District Court acting in full accord with this twelve-person principle in Grand Jury of Seminole County v. Dye, 1977 OK 173, 571 P.2d 1200. Dye is the case that most likely generated the amendments to Title 38, Section 21, under consideration in this appeal. The District Court impaneled a Seminole County grand jury on April 12, 1976. The following day, after the grand jury began its sessions, the District Court learned that one of the grand jurors was disqualified by virtue of a felony conviction. Eight surplus grand jurors had already been released. Id., at TY 19-20, 571 P.2d at 1204. The District Court drew an additional thirty names from the jury wheel, selected and qualified a replacement juror, and impaneled this reconstituted jury. After hearing evi-denee, the grand jury on May 7, 1976, issued accusations for removal of three Seminole County Commissioners and the County Assessor. Id., at 117-10, 571 P.2d at 1208.
T7 In June, 1976, another Judge of the District Court quashed the accusations for removal issued by this grand jury, finding the jury selection process violated then-current versions of 38 0.8.Supp.1975, § 21, and 22 0.8.1971, § 829. The State appealed. On appeal, the Supreme Court found the impaneling of the grand jury in substantial compliance with the statutes in effect at the time and reversed the order quashing the accusations for removal. Dye, at 129, 571 P.2d at 1207. That same year, the Legislature added three sentences to 38 0.8. § 21, providing for impaneling three alternate grand jurors and regulating their membership on the grand jury. The cumbersome procedures followed by the District Court in Dye certainly ensured a twelve-person grand jury, but probably also illustrated to the Legislature the need for a streamlined way to retain qualified alternates and protect the grand jury from an unexpected incapacity or disqualification of one of its members.5
8 The Constitution clearly fixes the composition of those deliberative bodies that will exercise fact-finding powers in grand jury inquests and eriminal trials. However, I find no limitation on the number of persons who may be qualified as alternate grand or petit jurors in anticipation of exercising these powers if a regular juror is unable to do so. This question has long been a subject of legislation, and in the absence of statutory direction, the common6 22 0.$S.2001, § 9; *409Smith v. Territory, 1904 OK 110, ¶¶ 0-3, 14 Okla. 518, 79 P. 214 (territorial courts possessed jurisdiction to impanel grand jury according to common law when no method provided by statute). Early cases reveal that Congress adopted the eriminal procedure statutes of Arkansas as the law of Indian Territory, and these statutes provided for summoning regular and alternate grand jurors in the territorial Courts. Gardner v. United States, 1904 IT 10, ¶2, 82 SW. 704; Reynolds v. United States, 1907 TT 8, ¶ 3, 103 S.W. 762; Mansf. Dig., § 8982. These procedures were almost certainly familiar to some of the twenty seven territorial lawyers who served as delegates to the Constitutional Convention in 1906-7. A.M. Gibson, Oklahoma: A History of Five Centuries 196-197 (Univ. of Oklahoma Press, 1981).7
I 9 Considering the language of Article II, Section 18 against this backdrop of its common law heritage, I am convinced the Framers of Section 18 would find an indictment presented by a supposed "grand jury" of nine or ten far more repugnant to their Constitution than an act of the Legislature providing for three qualified alternate grand jurors. The theory of built-in alternates, which purportedly arises from the "self-executing" nature of Section 18, is an innovation unsupported by history or text. Ironically, the loose reading of Section 18 that would quash these indictments endangers constitutional liberty by rendering Section 18 powerless against truly flagrant legislative and judicial encroachments on the grand jury. After all, says this novel theory, only nine voting grand jurors are constitutionally required; three of the twelve are constitutionally expendable at any time. These "surplus" grand jurors could be dispensed with just as easily by an ill-advised statute or an intemperate judge as by illness or disqualification, and this Court would have no constitutional grounds to hold otherwise.
{10 The alternate grand jurors provided by 838 0.S.8upp.2004, § 21, are fully compatible with Article II, Section 18 of the Oklahoma Constitution. The statute provides that alternates "shall attend all functions of the grand jury during its term and shall be subject to all laws governing grand jurors. Provided that, no alternate juror shall participate in any deliberations of the grand jury until appointed to fill a vacancy" (emphasis added). Title 22, Section 340(C) further provides that "no person, except the members of the grand jury, shall be permitted to be present during the expression of juror opinions or the giving of votes upon any matter before the grand jury." The District Court instructs the grand jurors that "no alternate grand juror shall participate in any deliberations of the grand jury until appointed" by the Court OUJI-CR(@d) 12-2. These statutes and corresponding jury instructions ensure the grand jury is a deliberative body of twelve qualified persons, no more and no less. Alternate grand jurors are sworn officers of the court under a duty to be fair and impartial, and it has not been shown here that alternate grand jurors violated their oaths or instructions.
{11 Unless public resources are to be wasted and investigations thwarted by the disqualification or incapacity of a regular grand juror, providing for qualified alternates makes the same good sense with grand jurors as it does with petit jurors. There is no need to harmonize a thirty-year-old statute, enacted for this legitimate purpose, with the language of Article II, Section 18. There was never any conflict between them. For more than a century, Section 18 has guaranteed that no person shall be indicted in Oklahoma except by a grand jury "composed of" *410twelve persons. The Legislature has provided in every case for a number of qualified alternate grand jurors sufficient to meet our Constitution's unyielding command. I concur in the judgment of the Court. I am authorized to state that Judge Arlene Johnson joins in this concurrence.
. While defendants in some cases perceive good reasons for waiving the requirement of twelve *407jurors at trial, we can see no reason why these Appellees or any other grand jury targets would waive the right to be indicted, if at all, by a "grand jury" duly "composed" of twelve qualified persons, with at least nine of their number concurring in the indictment as required by Article II, § 18 of the Oklahoma Constitution.
. Sir Matthew Hale, 2 Historia Placitorum Coro-nae (History of the Pleas of the Crown), 155 (1713); Sir William Hawkins, 2 Pleas of the Crown, Ch. 25, § 18 (4th ed., 1762). Lord Chief Justice Hale wrote that all of the grand jurors must be "probi et legales homines [good and lawful men] and therefore, if any one of the Indictors be outlawed, though in a personal action, it is a sufficient plea to avoid the Indictment." (emphasis added).
. The Cherry Court later added to its opinion the following note:
Since the delivery of the above opinion, Mr. Chitty's "Practical Treatise on the Criminal Law" has been published. By referring to his 6th chapter, vol. 1, p. 307, the subject of the qualifications of Grand Jurors may be found. His authority is a full support of Judge White's opinion. 'This necessity (he remarks) for the Grand Inquest to consist of men free from all objection, existed at Common Law, and was affirmed by the Statute 11 Henry 4, ch. 9, which enacts," &c. (emphasis added).
Cherry, 4 Va. 20, 1815 WL 382 at "4.
. Blackstone remarked that the common law grand jury was composed "of twelve at the least, and not more than twenty three; that twelve may be a majority ... which number as well as the constitution itself, we find exactly described, so early as the laws of King Ethelred." IV W. Blackstone, Commentaries on the Laws of England 299 (1769).
. The tremendous practical value of alternate jurors is also shown in the Swift case, supra, 1973 OK CR 240, 13, 510 P.2d at 287, where the incapacity of a petit juror and the lack of a viable alternate resulted in a violation of Article IL, § 19, and reversal of the judgment on appeal.
. Of the legislative power to regulate the qualifications of grand jurors, Blackstone observed that the law required "[they ought to be freeholders, but to what amount is uncertain: which seems to be casus omissus, and as proper to be supplied by the legislature as the qualifications of the petit *409jury; which were formerly equally vague and uncertain, but are now settled by several acts of Parliament." IV W. Blackstone, Commentaries on the Laws of England 299 (1769). See, eg., N.M. Stat. Ann. § 31-6-1 (Michie 1978)(grand jury shall be composed of twelve regular jurors and a sufficient number of alternates to insure the continuity of the inquiry); 42 Pa. Cons.Stat. Ann. § 4545 (grand jury shall be composed initially of 23 members and have seven to fifteen alternates).
. Thirty-four delegates to the Oklahoma Constitutional Convention, including its President, William H. Murray, had also served as delegates to the 1905 Sequoyah Convention. Murray was "steeped in basic law and was regarded as a leading authority on constitutional government." A.M. Gibson, Oklahoma: A Elistory of Five Centuries 196.