Crimm v. Commonwealth

119 Mass. 326 | Mass. | 1876

Gray, C. J.

A grand jury in this Commonwealth may consist of not less than thirteen, nor more than twenty-three persons. Commonwealth v. Wood, 2 Cush. 149. In the present case, the writs of venire facias were originally issued by the clerk for twenty-three grand jurors, as authorized by the Gen. Sts. c. 171, §§ 1, 2. Section 4 provides that, “ in case of deficiency of grand jurors in any court, writs of venire facias may be issued to the constables of such cities or towns as the court may direct, to return forthwith such further number of grand jurors as may be required.” We are of opinion that this section authorizes the court, whenever the number of grand jurors in attendance is less than the full number of twenty-three, to cause so many additional grand jurors to be summoned as in its opinion, making due allowance for absences and excuses, may insure the filling up of the grand jury to that number; and that the summoning of a greater number does not affect the validity of an indictment found by the legal number of jurors.

Grand jurors sworn by the clerk in the presence of the court are legally charged with the performance of their duties, so far as any action of the court is required. Commonwealth v. Sanborn, 116 Mass. 61. But if they are at once excused and never join the grand jury in their deliberations, they form no part of the grand jury by which an indictment is found.

The validity of the proceedings in this case depends upon the amended and completed record, returned in obedience to the writ of certiorari issued upon the motion of the attorney general. Turns v. Commonwealth, 6 Met. 224. By that record it appears that at January term, five of the grand jurors originally summoned were excused permanently, leaving a grand jury of eighteen; that a venire was thereupon ordered by the court to issue for seven additional grand jurors, six of whom appeared and were sworn, and two of these permanently excused, leaving a grand jury of twenty-two, and that those twenty-two, together with the seventh additional juror before summoned, constituted the grand jury of February term, by which this indictment was found’. It thus appears that the grand jury in question consisted of only twenty-three persons, as the law requires.

The case of State v. Symonds, 36 Maine, 128, upon which the plaintiff in error relies, differs from this in two particulars : 1st. By the statutes of Maine, the court had no authority to summon additional grand jurors. 2d. The objection was taken before pleading the general issue. See State v. Carver, 49 Maine, 588 ; Commonwealth v. Parker, 2 Pick. 550.

As we are of opinion that no irregularity is shown in the case before us, it is unnecessary to consider whether the objection was seasonably taken. Judgment affirmed.