*1 273 it, to was increasing the assets available the estate fited out the fund. for his efforts to be compensated entitled 73-74, (1939). 5 325 Estate, 334 Pa. A.2d Wilbur’s See this agree appellant We with cannot that, though beneficiary adversary litigation purely sisters, required her she cannot be the estate with equally his efforts attorney of her sisters’ for the fee contribute Estate, 69 Pa.D. & Compare Ogden on behalf of the estate. Pa. A.2d 361 (Delaware, 1974), aff’d 467 356 C.2d matter must be re Nevertheless, conclude this we (1976). in fact light manded for reconsideration had deemed counsel fund the court part greater account, estate, of the bank proceeds for obtained not to belong now been determined has Cohen, (1976). 469 Pa. A.2d estate. See Estate of some produce nonetheless the efforts of counsel did Since estate, it should be within the discretion benefit to benefit can be said below to whether the court determine and, so, compensation if what appropriate be substantial A.2d 337 Estate, 431 Pa. should be. See LaRocca (1968). record part, part,
Decree affirmed vacated this opin- for consistent with proceedings remanded further estate. ion. Costs
This
an indictment
Pennsylvania quashing
Court of
defendant,
Levinson,
Hillel
Common-
(appellee).
against
Levinson,
(1970).
The this Court prosecution petitioned followed. We appeal and granted petition We affirm. Jury, 1974 Grand January
The of original complement in members, was sworn consisting early of twenty-three on Janu- specially charged 1974. The January of 31, investigation specific into nine 1974, to conduct ary of areas, government including corruption City in into matters investigation and to continue the Philadelphia, Grand Special Investigating considered originally Term, 1972. June Jury grand one mid-January,
Between May excused from temporarily were juror died and five others 15, 1975, excused temporarily the five service. January On excused, additional permanently were grand sworn, entire and the jurors were selected reconstituted, charged. was again specially as jury, continued Jury Grand then Investigating reconstituted 1974 Thereafter, two more proceedings. its investigation At substitution. were excused without original jurors recom- Presentment time returned Fourteenth it indictment, consisted mending appellee’s original panel twenty-three plus fifteen members 1975. January of the six members added in the raised trial by appellee of error The allegations granting appel- the order court, specified and which were the Appеl- under Section motion for certification lee’s 211.501(b), are Act of 17 P.S. § late Court Jurisdiction *6 follows: as a hear- preliminary defendant of either The denial to
“(a) of the witnesses jury minutes grand or access to ing equal denial of plain protection him constitutes against law; 15,1975, of grand on six new (b) January The substitution was January 2, 1974 for six sworn on grand jurors jurors laws of and Pennsylvania; unauthorized under the Karlinski was unauthorized (c) Former Grand Juror 19, the on March 1975 when in person the grand was voted.” against defendant Fourteenth Presentment the trial noted, the Court reversed Superior As previously on of its indictments the basis quashed and ordered the court Because we agree number two above. allegation of analysis this case on disposition with the Cоurt’s the other raised. basis, questions we do not address its in of arguments support raises several prosecution not have been quashed. indictment should the position mem- the of the six new it contends that addition Initially, 1974, 15, January to the investigating bers 427, 41 P.L. authorized the Act March § was by the 1233). Secondly, prosecution (17 P.S. 1152 and § § was addition of the six not authoriz- that even if the argues statute, had inherent discretion- judge the by supervising ed jury, to the and therefore grand add members power ary not unlaw- additional six members was the the presence Furthermore, to the the substi- according prosecution, ful. de legitimacy should afforded facto tuted was unlawful. if their substitution even that if the addi- contends Alternatively, prosecution the because not autho- was unlаwful of these six members tion discretionary statute, supervising judge’s nor by by rized facto being given authority, dc nor their powers, has because defendant was not defective presentment the inclusion of these shown that he was prejudiced by not deliberations, if the or that even addition six if was defec- unlawful, and even tive, independent subsequent defect was cured indicting action of the 427, 41 (17 P.L.
The Act March P.S. § §§ 1233) as provides and follows: jurisdiction
“All of criminal this common- courts hereby required, and are authorized wealth shall be order necessary, when occasion shall render same circumstantibus, petit tales de either for same and all talesmen shall liable chal- jury, Provid- principal jurors: fines and as the lenges, penalties reрeal That herein contained shall or alter the ed, nothing 20,1858, April act entitled ‘An act of an provisions passed drawing selecting jurors mode of establishing a *7 ” Philadelphia.’ for the of city county (This suspended: insofar as it partially applied Act has been 1125(3) been Rules 1109 and juries replaced by to it has petit Pa.R.Cr.P.) statute, argues This the prosecution, the of members of inves- . . authorized the addition “. to form a was quorum when the grand jury, ability tigating death or through vacancies created seriously endangered by dismissal for cause.” that the concluded Superior correctly
The Court The for the substitution. authority Act does not provide to a situation clearly inapplicable material cited is statutory here. statute authorizes the such as the one The presented persons originally of when the calling additional number jurors the are to be the from which constituting panel of or other dwindles, challenges either because selected it becomes too small in circumstances, such a that point jurors required sufficient make the number to supply Act the of “talesmen” calling The authorizes twenty-three. a sufficiently panel from provide large when “necessary” of members the twenty-three which to the select Commonwealth, 91 493 at Pa. As stated in Williams (1879): attend, if so many challenged the do not or jury
“If all a sufficient number do not remain and drawn that there law writs for make a there are at common [several statute, a plaintiff may pray the the or filling panel], (Emphasis . in origi- . .” tales de circumstantibus. nal.) of the prosecution’s the error
As further illustration
that
Act
we note
the
refers
point,
argument concerning
If, as
grand juries.
for both
jurors
petit
to selection
summoning
the Act authorizes
prosecution argues,
panel has been
original
after the
grand jurors
additional
petit
authorize the addition
sworn,
similarly
it would
seated and had
twelve had been
juries
original
after
so at odds
a
proposition
to hear evidence. Such
begun
needs
its
no
absurdity
of trial
that
concept
with our
observed
correctly
comment.
further
“built-in
is so
as to include
composed
Levinson, 239
at
Pa.Super.
Commonwealth v.
alternates.”
regard to
petit
juries,
A.2d
1088. With
a discharge
to the effect that
lаw
was
common
rule
.
.a
defect in
whenever “.
required
entire jury
or
juror,
due to the death of
occurred
[to]
other cause necessi-
juror,
illness or misconduct
[to]
A.L.R.2d
discharge.” Annot. 84
juror’s]
tating [a
Percival,
(1850),
In
“[t]he ment alternates since twenty-three with built-in eight chosen and fifteen may need persevere.” Levinson, supra, Commonwealth Pa.Super. 1088. A.2d at there is statutory, reject argument We for the “mid law, judicial authority common or inherent original citizens as after jurors stream” substitution of cited, and The has not prosecution has been sworn. panel authori any Pennsylvania our research has failed to uncover be sworn and “juror” may for the that a new ty proposition of either a voting petit in the deliberations or participate swоrn and after has been original jury its work. begun In Re of Jan. Investigation
The
reliance on
prosecution’s
1974 Phila.
(1974), is
City
Jury,
Gr.
458 Pa.
members should be afforded de facto
Under the
legitimacy.
de
under color
facto
acting
the official acts of one
approach,
office are
the same effect as
given
of title to a public
are therefore legally binding
acts of a de
jure
official
are ousted from office. State
such de facto
until
officials
Pollack, 457 Pa.
Board v.
Examining
Dental Council &
however,
The de facto
doctrine,
not
Appellee argues
below, and
it was not raised in the courts
because
argument
waived,
is not
applicable
even if not
the doctrine
that
both
prosecution argued
criminal law.
Inasmuch as the
Court
the trial court and before
authorized, and that
substitution
was
challenged by appellee
presenсe,
not invalid because of their
do
the issue has been waived.
we
not believe
the six substi-
that the
prosecution argues
presence
unauthorized,
defect
created no
tuted
even if
grand jurors,
prosecution
proposition,
in the
For this
presentment.
457 Pa.
Corp.,
Investment
v. Columbia
cites Commonwealth
Investment, majori-
In Columbia
(1974).
investigating grand jury be- did not invalidate the stenographer sworn they that cause the defendants had failed demonstrate of were the such unauthorized prejudiced by presence the case concluded in instant Superior The person. jurors, six unauthorized who had that the of presence during early who testified the not seen or heard witnesses had be deemed investigation “inherently of phases the Levinson, Pa.Super. Commonwealth prejudicial.” the Court distin- holding, A.2d In so at 1089. 144 F.2d Thompson, ex rel. McCann v. United guished States 313, 89 L.Ed. Cir., cert. den. 323 U.S. 65 S.Ct. (2d juror need not case that (1944)), holding every a each piece for presentation be in attendance the Thompson Court by The evidence considered was to the presented reasoned that the evidence evidence guilt any accused’s aimed providing have would lessen which a missed juror might Therefore absence created guilt. juror’s likelihood Hand in Judge Thomp- stated Learned prejudice. no As son: all the objection testimony not principle
“On
[that
us not well taken.
heard
each
seems to
juror]
live by
a grand jury
before
all the evidence adduced
Since
—cer-
aimed at
does not appear
the accused
tainly when
—is
during
part
of some
some
the absence
proving guilt,
prosecu-
weaken the
ordinarily merely
will
hearings
enough
hear is
actually
what the absentees
tion’s case. If
them,
why
to be no reason
there would seem
satisfy
can think of
this we
Against
not vote.
they should
of the evidence
that some
nothing
possibility
except
turn out
might conceivably
prosecution
adduced
accused;
that,
if
absentees
to the
favorable
vote
true bill.
it,
have refused to
they
had heard
might
occur;
never
but
that this can
No one can be
sure
entirely
it
be left
so
a chanсe that
should
appears
it
to us
remote
made to
appear
it can be
to those instances which
character,
in spite
of that
not heard was
evidence
was the
extreme
of ever
what
difficulty
proving
Indeed, the
grand jury.
possibility
evidence before a
evidence, is a reasonable
not all who vote will hear all the
sixteen is a
Were
quorum.
inference from the fact that
law
it would
mean
argues,
practically
as the relator
case,
beginning
that all
at the
must
jurors present
any
end,
remain
for
to tell
always
impossible
to the
it will
bill,
in advance whether twelve will
vote a true
eventually
do,
if
who those twelve will be.
result of
they
case,
such a doctrine would therefore be that in a
long
*11
in a case
are intervals in the
taking
where there
evidence, the
of absence would not exist. That
privilege
innovation,
would
be an
for the
certainly
contrary practice
has,
universal;
aware,
so far as we are
been
and it would
be an onerous
unnecessary
innovation.”
For the reasons that we believe to be Thompson all, to the case. First of was inapplicable present Thompson concerned with the of whether was question prejudice presence caused to a defendant the of unauthorized case, on an jurors indicting grand In the instant we are concerned with an where the investigating grand jury alleged guilt of a is not the issue. An party primary is investigating grand jury charged with conducting investigation susрected into certain areas of criminal activi- and the one individual under ty, any evidence relative contain much that is as investigation may exculpatory well well as that Based on its view of all inculpatory. which that evidence the just presented by prose- the evidence —not recommend that grand jury may cution —the investigating criminal be initiated individu- charges against any particular al. case, who voted on the jurors
In the instant six of the missed the same Even if we testimony. all rationale, were to the it would remain valid Thompson apply when the collective of the remains only memory grand jury intact the absences of various individual despite sporadic members. When a substantial of the total mem- percеntage portion of the
bership significant is absent from can evidence, longer it no with presentation of said were not affected. In the confidence the deliberations all of the members grand jury instant case six substituted were testified initially sworn after defendant Levinson had 1974 Grand were January Jury. They exposed before prior testimony testimony Levinson’s when that only read them To make attorneys. one of prosecuting worse, prior those testi- appellee’s matters only portions which the “relevant” to mony attorney deemed prosecuting panel. were read to reconstituted investigation reading testimony given by Based on this part substi- appellee prior January and others six or not Levin- question tuted vоted on whether son other when he testi- perjury, among things, committed fied 1975. before the reconstituted on March This appellee prejudice. caused substantial procedure group were added as middle grand jurors testimony. not initial appellee’s did hear investigation. They Furthermore, the evidence in an order and fash- heard they members, indeed, not original ion did different from the even hear the evidence as the rest of because same they testimony prosecuting were read *12 felt to the Fourteenth Presentment. was “relevant” attorney Nevertheless, were in so asked decide whether they perjury. the defendant committed testifying In not quashed the indictment should be holding in the room of an grand jury because of presence in majority Columbia stenographer, unauthorized court said, Corp., Investment supra, “ counsel interposed . . . nor their appellees neither and no presence stenographer to the objection alleged. The trial erred in judge has been thus prejudice basis.” quashing indictments A.2d at 297. 457 Pa. to a situa- Corp., clearly inapplicable
Columbia Investment tion, case, the accused was as that in the instant where such persons of six who presence the unauthorized prejudiced by not sat In the only grand room but who jury actually in the discussions participated leading up to the and voted on that presentment. As stated in Common- Hegedus, wealth v. 44 Pa.Super. 165 (1910), “ . . . mere in presence room, [T]he of a stenographer employed by the district attorney, by express office,’ ‘as an statutory authority, assistant in his for the in purpose taking shorthand, down for the use of the district the evidence attorney, upon which indict- returned, ment is does not invalidate indictment, in the absence of anything tending show that he was present when the grand jury deliberated or voted upon the bill, or that he participated proceedings any other than way by taking notes of the or that the testimony, accused was injuriously affected thereby.” (Emphasis supplied.)
Furthermore, Rule 209 of our Rules of Criminal Procedure specifies who be may present during grand jury sessions:
“The Commonwealth, for the attorney the witness un- examination, der and an when interpreter needed, bemay present session, while the is in but no person other than the while may present is deliberating voting.” (Emphasis added.) The “jurors” course, referred to in Rule can only jurors. authorized Although Rule 209 applies specifically indicting grand juries, purpose behind its enact- ment, namely, avoidance of the possibility that the jury will be influenced by considerations other than those stem- ming it, from the evidence presented to is equally applicable to an investigating grand jury.
Lastly,
prosecution argues that even if the
unlawful,
substitution was
if
even
that unlawful substi
tution created a
in the presentment,
defect
the indictment
nee(l not be
because it was
quashed
returned
a separate,
independent, indicting
thus
jury,
curing
defect or
any
*13
presentment. Citing
in the
irregularity
Commonwealth v.
Evans,
179,
190
Appellee before indicting him prejudiced defective presentment impossible burden would an such a because grand jury surrounding secrecy the cloak of light one to meet in 209. Fur- Pa.R.Cr.P. deliberations. See grand jury indicting jury that thermore, asserts appellee to bill it. See Com- presented merely stamps” “rubber 130-133, A.2d Webster, 462 Pa. monwealth v. 201, 46 898, 96 сert. den. 423 S.Ct. (1975), 917-918 U.S. L.Ed.2d 131. Fourteenth held that the defective “ . provided primary
Presentment . . could have indictments,” added) (Emphasis Pa.Super. basis for the at the indictments therefore 362 A.2d of the Subsequent issuance should be quashed. matter, the prosecution opinion Superior Court’s Tischler, former affidavit, by Harry S. signed an produced present he had been stating that attorney general, assistant it on the heard evidence grand jury day indicting before the According Levinson. concerning on the bill of indictment to the was read affidavit, the Fourteenth Presentment that, Following accord- entirety. its jury in indicting grand summary with a affidavit, presented to the ing had before who testified two witnesses testimony in the too be mentioned late to grand jury the investigating evidencе relevant documentary and with the presentment, in the indictments. the transactions described notion of an indictment reject that we any We first note on the presentment based regular or cures and all any irregularities investigating functioning occurred in the defects have may conclude To do would so investigating grand jury. does, investigating grand jury that no what an matter
289 how it functions it is to be considered above the law. An the investigating grand jury subject must law other- wise it can become uncontrolled interfering instrument with the rights of citizens. quash courts will not an indictment
Ordinarily, based on or even evidence. inadequate, incompetent, illegal United 388, Calandra, 613, v. 94 38 States 414 U.S. S.Ct. L.Ed.2d 561 ; (1974) Webster, 125, v. 462 Pa. 337 Commonwealth A.2d 914 (1975). The this rule was stated reason behind Permitting grand jury Calandra court. witnesses to chal evidence lenge admissibility sought by grand rule, would, such as jury, by invoking exclusionary adjudication of issues hitherto reserved for “precipitate the trial on merits grand and would delay disrupt jury proceedings. Suppression would halt the hearings of an orderly progress investigation might necessitate extended litigation of issues related to only tangentially the grand jury’s primary objective. probable result would be ‘protracted interruption jury proceed- ings,’ them into effectively transforming tri- preliminary als on the merits. In some cases the delay might fatal (Citations the criminal law.” enforcement of omitted.) footnotes
414
349-350,
620,
94
at
U.S.
S.Ct.
Calandra’s reasons for
are
refusing
quash
not applicable
fact,
here.
In
reasoning
Calandra’s
our conclusion
supports
that the indictments were properly quashed.
In the instant
case
the indictments does
quashing
not interfere with the
efficient
of either the
functioning
investigating or the in-
dicting grand jury. Quashing
indictment based as it was
presentment,
at least in
on an invalid
part,
serves
assure
proceeding
in the formulation and
of the investí-
regularity
check
judicial
upon
It
as a
serves
gatory grand
grand jury.
power
investigating
abuse of
443 Pa.
The order of the is affirmed. in which J., dissenting
ROBERTS, opinion filed O’BRIEN, J., joins. in which dissenting opinion
POMEROY, J., filed O’BRIEN, J., joins. Justice, dissenting.
ROBERTS, 1974 Special Investigating ago, months Thirty-nine City of officials of corruption Jury probing Grand recommend- Presentment its fourteenth issued Philadelphia Levinson, Di- Managing Hillel appellee ing indictment extortion, violating charges on Philadelphia, rector of Charter, political assess- prohibited Rule Home Philadelphia later, a separate, month swearing. One ments, and false the Present- Jury, upon reviewing Indicting Grand regular evidence, appellee indicted ment and additional hearing all charges. never reached appellee case against
The Commonwealth’s motions, one of numerous pre-trial Appellee trial. filed the indictment. quash the court requested relief, court denied but certified the issue for interlocutory appeal to the Superior Court. That court reversed (Spaeth, J., concurring Price, J., and dissenting; We dissenting). granted Commonwealth’s petition for allowance of ap- and, in peal, January, the time fixed for oral argument, the Commonwealth and appellee submitted the case to this Court on briefs.
Even before confirmation of the Magna Charta in delays justice administration of were considered just as evil as denial of justice itself. seven Today, and one-half later, true, centuries the same is with perhaps greater even force.
In cases criminal involving charges political and gov- ernmental corruption, like those delays found here are espe- cially substantial disturbing. Despite expenditures of prose- cutorial, enforcement, law judicial, and other public re- sources, the merits of the have charges long remained unre- solved, denying both the Commonwealth and the accused the for opportunity timely unfortunate, vindication. Most demonstrated lack of resolution timely undermines public *16 confidence the effective and equal administration of the criminal law. All that is left is an unwarranted and unnec- essary classic case of delay, totally defeating justice.1
Equally disturbing is the majority’s erroneous resolution of the merits. The majority agrees with appellee that Takiff supervising Judge committed prejudicial error by adding selected regularly jurors when the total number of original investigating grand fell to seventeen be- cause one died and juror five others were excused because of personal hardship. Broadly interpreting Act,
1.
the Hobbs
18
to
§
U.S.C.
reach
beyond
“racketeering,”
Supreme
mere
Court of the United States
recently recognized Congress’ disapproval of the recalcitrance
governments
prosecute
some state
to
crimes like those here under
investigation by
grand juries.
Culbert,
United States v.
435 U.S.
(1978).
may
argued
98 S.Ct.
Federal сourts have supervising where refused to indictments quash (M.D. re 274 Meckley, F.Supp. In grand jurors, replaced jurors heard all the and where not all Pa.1943), Thompson, ex rel. McCann evidence, United States Investigation January In In re (2d 1944). F.2d 604 Cir. 328 A.2d Grand Pa. Philadelphia County Jury, October, 1974, Court, in refused terminate (1974), and nine jury, empanelled charged this investigating grand its properly held it could continue months earlier. We its life though even activity criminal probe suspected investigating grand juries.2 life of might exceed the normal McCann, Jury clearly Grand Philadelphia and Meckley, court must have supervising that the support proposition permit reasonably necessary steps to take authority its activi- work. Criminal grand jury complete extended governmental it invоlves corruption, where ty, particularly involved, too extensive, objections procedural often too through original grand which all period with in dealt considerations, of These significant able to sit. jurors are concern, the fact that fifteen as well as great public lawful jurors, a investigating grand original twenty-three until its remained members quorum, termination, vague unsupported outweigh appellee’s far Indeed, Takiff’s addition of prejudice. Judge assertion of chosen, sworn, charged, was a jurors, properly six new no in- way measure that and appropriate reasonable would original grand jurors the likelihood that creased injure appellee. or otherwise recommend indictment new investigating of the six Following selection its before summarized evidence the Commonwealth jurors, too, This concludes investigating grand the full agree. I cannot Summation *17 majority, prejudiced appellee. Jury, probing Report, June 1972 Grand the same In 2. its Final one, activity present forma- suspected as recommended criminal present “very promptly.” of Formation tion of a new recommendation, upon was sustained grand jury, empanelled this challenges. procedural In Investi- variety See re of this over a Court 586, Philadelphia Jury, January County 458 Pa. gation Grand 1974 of (1974). 328 485 A.2d
293
settings.
g.,
in
E.
similar
approved
has been
employed
Mitchell,
166,
v.
(D.D.C.1974)
F.Supp.
United States
of
summary
prepared
(no
prosecutor
reversible error where
in the record demon-
Nothing
jurors).
for grand
evidence
mischar-
the Commonwealth
strates,
suggests,
or even
con-
in
other
any
prejudicial
engaged
its case or
acterized
Rather,
procedure
established
jurors.
duct before the
the fifteen
both
jurors,
enabled all
American jurisprudence
case
new,
assess the Commonwealth’s
and six
original
should be approved.
intelligently
before
Moreover,
proceedings
action in the
neither
of the regular,
the validity
affected
investigating grand jury
indicting grand jury
indictment.
indicting
jury’s
well-documented
investigating grand jury’s
had
it the
before
may
indictable offenses
Presentment,
itself evidence that
Further,
indicting grand jury
have been committed.
has chal-
testimony. Appellee
heard
additional
extensive
investigating
valuе of neither
lenged
probative
heard
testimony
nor the additional
Presentment
grand jury’s
An
indicting grand jury,
indicting grand
whether crimi-
determining
its
discharging
responsibility
instituted,
all probative
consider
may
nal
be
charges should
may
evidence,
example, hearsay,
for
including,
U.S.
Calandra, v.
inadmissible at trial. United States
618,
(1974) (citing
338, 345,
38 L.Ed.2d
94 S.Ct.
Powell,
the Supreme
for
cases).
speaking
As Mr. Justice
States,
has stated:
the United
out until
‘is not
carried
investigation
fully
“A grand jury
down and all witnesses
available clue has been run
every
if
crime has been
to find
proper way
examined in every
trig-
investigation may
.
committed.’
.
.
Such
rumors,
proffered by
prosecu-
evidence
gered by tips,
jurors.
.
knowledge
tor, or the personal
the evidence
has examined
It is
after the
will result
proceeding
whether the
that a determination
made.”
can be
an indictment
Calandra,
344, 94
at
S.Ct.
United
v.
414 U.S.
States
701-702,
92 S.Ct.
Branzburg
Hayes,
408 U.S.
quoting
It
therefore difficult
(1972).
2666, 33 L.Ed.2d
*18
how either
state
see,
satisfactorily,
fails to
majority
and the
to the
additional
empanelment
Takiff’s
Judge
or the Commonwealth’s summation
investigating grand
a basis for
the indictment.
quashing
can
as
of evidence
serve
Levinson,
387, 410,
Pa.Super.
v.
Commonwealth
See
J., dissenting).
(Price,
1093 (1976)
A.2d
recognize
fails to
the fundamental
sum,
majority
In
of criminal
in the administration
juries
of grand
purpose
not
adversary
is
an
grand jury proceeding
“A
justice.
is
of the accused
or innocence
in which the
hearing
guilt
parte investigation
an ex
Rather,
it is
adjudicated.
and whether
a crime has been committed
determine whether
per-
against any
be instituted
criminal
should
proceedings
343-44,
Calandra,
414 U.S.
son.” United States
this vital substantive
majority disregards
S.Ct. at 618. The
remedies for
that
rights
create
distinction and proceeds
where none
prejudice
to find
injured
have not been
Supreme
the admonition of
exists.
also is
Ignored
its inves-
performing
:
Calandra “When
.
a
area
general problem
into
tigatory function
and extensive
by thorough
best served
interest is
society’s
At this
I believe I therefore quashed. this appellee the indictment of reinstate and would order of affirmance from the dissent found the pleas of the court of common the order it. refused to quash indictment valid and substi- error occurred persuaded any I am not *19 jury, investigating grand members of the of six new tution transpired had as to what who were then briefed fully inwas appointment Even if their selection. before their harmless for at least clearly error, however, it would seem two reasons. a full all relevant times
First, there was in existence Second, the investigating grand legal quorum investi- not the act of crime was indictment appellee’s had indicting grand jury, but of the gating investigating jury it not only before seems to majority opinion but other evidence as well. bodies, two in the roles of these overlook the basic difference which is some of citing authority and confuses the issue by indicting grand jury. relevant to the innocence to appellee’s guilt I and allow would reverse case, the final arbiter in a criminal determined has been process adjudicatory Its role petit jury. decision. today’s aborted totally O’BRIEN, J., dissenting opinion. in this joins
Decided