I am in complete concurrence with the holding of the majority opinion that the law of this State definitely fixes the number of persons to be summoned for grand jury *Page 444 service at 23 and no more. Indeed, it is impossible for me to see how anyone conversant with the legislation in this State on that subject can be of a different view. As is stated in the majority opinion, the question of the number to be summoned for grand jury service is shrouded in no doubt, and the language of the provision is so simple, so plain and so often repeated that it seems strange there should be such a want of compliance with its provisions as is shown by the record in this case. However, I am unable to agree that the plain and unambiguous language of the statute is only directory and may be disregarded at the pleasure of the judges of the criminal court of Cook county, whose duty it is to uphold the law as it exists.
Prior to 1897 there was a storm of complaint about the "hand-picking" of grand jurors in Cook county. It was then the law, as it is now, that a grand jury list should contain the names of 23 persons having specified qualifications. If any of those summoned failed to appear or were excused, the presiding judge would order the sheriff to fill the panel. This gave the sheriff a power which was frequently abused. It was publicly charged that grand juries were made to consist of men who were pre-disposed either to indict or to protect from indictment a given individual. As a result of this evil, the legislature by the enactment of the Jury Commissioners law sought to make it impossible for the grand jury to be selected, either in whole or in part, through the choice of sheriff, judge or anyone else. It was provided that a jury list be made up of all the electors in the county between the ages of twenty-one and sixty years possessing the legal qualifications for jury duty. The names of the persons on the list were required to be written upon cards and placed in a box called the "jury box." When grand jurors were needed it was the duty of the clerk of the court, in the presence of at least two of the jury commissioners, and also in the presence of the clerk of said commissioners, to draw at random from the jury *Page 445 box, after it shall have been well shaken, the necessary number of names and to certify them to the sheriff to be summoned for service. If for any reason the panel was not full when it was needed the court was required to certify that fact, and a sufficient number of additional jurors to fill the panel would be drawn in the manner above stated. It was thought that this plan would entirely remove the evils which resulted from the old system. It would better protect the citizen who was not guilty of crime but whose indictment was sought for revenge or for political purposes. It would also assist in the administration of justice by giving the guilty less opportunity, through fraud and intrigue, to evade indictment. It is urged that these safeguards should now be ignored because the judges of the criminal court of Cook county have habitually violated the law with respect to the selection of grand juries for nearly forty years. Who can approve this contention? Since when did evil multiplied become a virtue? The first violation of the law was wrong, and continued violations neither remove the vice nor repeal the law. The force of the contention that the statute has been frequently violated is, that the law's inhibition against hand-picked juries does not suit the convenience or the purpose of those who have violated it. This indisputable fact is controlling of the question as to whether the law is mandatory or directory.
The majority opinion states, in substance, that this court has never held in so many words that the statute's requirements relating to the selection of a grand jury are mandatory. With this statement I disagree; but even if I am mistaken as to the import of prior decisions of this court, I am not in error in defining the line of demarcation between mandatory and directory provisions of a statute of this character. The principle is well established that if the purpose of the statute is to prevent fraud, imposition or unfounded prosecutions the law is mandatory, but if the chief purpose is only to distribute equally the burden of *Page 446 jury service or to fix the time of drawing the jury or the manner of its service the law is directory. We have seen that past legislation, its purpose and its history, clearly indicate that the provision as to the number and method of selecting grand jurors is mandatory. It has not been denied that the provision for drawing names at random from the jury box is mandatory, but it is said that the provision which limits the number to be drawn to 23 is not mandatory. I cannot be persuaded by such argument. If a greater number is drawn than 23, as was done in this case, it necessarily follows that the act bestows the power upon a judge or someone else, by a process of elimination, to obtain a panel of the men of his choice. One provision is just as mandatory as the other, because the purpose of the law cannot be effectuated without a strict regard for both.
There is no well-founded rule of law which places the burden upon the defendant to show that he has been prejudiced by error. Loose language to the contrary may be found, but it has no sound basis. The true rule everywhere is, that when error against a convicted defendant appears it is presumed to have improperly affected the result. This rule was enunciated by Mr. Justice Scholfield in Kirby v. People, 123 Ill. 436, and was later approved in People v. Michael, 280 id. 11. These cited cases do not relate to the selection of a grand jury, but the rule announced must, from necessity, be universal, and both cases hold that that presumption of error is rebutted only where from the whole record it is manifest that no improper result is caused by the error. It is but a logical sequence to say that the burden of showing what the record discloses to rebut the presumption is upon the prosecution and not upon the defendant, for if the record fails to show that the error was not prejudicial the presumption is conclusive.
In order for the majority of this court to reach the conclusion it does it has found it necessary to expressly overrule two former decisions of this court, namely,Marsh *Page 447 v. People, 226 Ill. 464, and People v. Green, 329 id. 576. Those who believe in the rigidity of rules of law, founded upon sound principles involving the rights of individuals, ought to advert to the splendid language used by the late Justice Farmer in Marsh v. People, supra, which deals directly with the question here involved. He said: "Cases are to be found in other States holding that a grand jury selected in a different method from that provided by law was a legal grand jury, while as many cases may be found holding that a grand jury not selected in accordance with the statute was not a legal grand jury. We believe the latter to be sounder in principle than the former line of authorities and that they are more in consonance with fundamental principles established by the decisions of our own State. It would be the adoption of a dangerous policy, and one liable to be productive of much evil, to lay down the rule that public officers may disregard the plain provisions of the statute directing them as to the manner of discharging their official duties, and hold that their acts performed in disregard of the statutory requirements would be as valid as if those requirements had been observed." In my judgment there is no occasion for the overruling of the Marsh and Green cases. The doctrine announced by them is founded upon the highest principles of justice and security. We depart from a well-marked trail when we forsake it and enter a domain of fraud, imposition and danger.
There is nothing in this case which demands the forsaking of well established principles. The excuse for doing so comes from a threat of the defendant in error that the effect of our failure to approve the strictures of the law will be to liberate certain notorious defendants who have been convicted under indictments subject to the vices we are concerned with in this case. If that should be the result it is serious and unfortunate, but the members of this court know, and the legal profession must know, where the *Page 448 blame lies. This court ought not to be expected to change its rules, its doctrines and its traditions merely to excuse officials who have failed to follow the simple, plain and unambiguous terms of a mandatory statute.
FARTHING and SHAW, JJ., concur in this dissenting opinion.