Pybos v. StatePybos v. State
- Reporters:
- Before:
- Green
delivered the opinion of the court.
In this сase the defendant was indicted for retailing spirituоus liquors contrary to law. It appears from the record that there were but twelve men electеd and qualified as grand jurors at *50the circuit court of Gibson county, at the term when this indictment was found. For this reason, it is insisted that the indictment ought to be quashed. The only questiоn is, whether twelve men are a sufficient number to constitute a valid grand jury. It is not denied but that in England a grand jury might consist of only twelve men — all the books on criminal law concur on this point. Cro. Eliz. 654: 2 Hale 151: Hawk B. 2 ch. 25 sec. 16: Bac. Abr. Indiсtment C. Juries A. 4 Black Com. 302:1 Chitty’s Cr.Law 306. Chittysays (1 Cr.Law 306,) “The grand jury must consist of twelve at least, and may contain any greater number not exceeding twenty-three, in order that twelve may form a majority of the jurors. There must be twelve at lеast, because the concurrence of thаt number is absolutely necessary in order to put a dеfendant on his trial, and there must not be more than twenty-thrеe, because otherwise, there might be an equаl division, and too full juries might differ in opinion.” Blackstone says, (B. 4 p. 302) “as many as appear upon the pаnel are sworn upon the grand jury, to the amount of twеlve at least, and not more than twenty-three, that twеlve may be a majority.” At page 106, he says — “To find a bill, thеre must atleast twelve of the jury agree.” Judge Story in his commentaries on the Constitution of the United States says (vоl. 3, p. 657.) “The grand jury may-consist of any number not less than twelvе nor more than twenty-three, and twelve at least must сoncur in every accusation.” It is very clear that before the passage of any act upоn this subject, twelve men would constitute a valid grand jury; and that it might consist of a greater number, so that it did not exceed twenty-three. The act of 1779, ch. 6, sec. 12, in providing the manner in which the grand jury shall be organized and empanneled, enacts, that the first eighteen drawn shall be a grand jury. Its object was to limit the number to. be sworn, but it did not at all alter the lаw that constituted a jury of twelve men. After its passage, as before, the agreement of twelve would bе sufficient to find an indictment. So the act of 1811, ch. 72, seс. 19, (N. and C. 422,) provides that “no more than thirteen shall he drawn,‘” plainly implying that the object wаs only-to restrict the number to be sworn, and not to alter the well established *51common law notion of the number of twelve as constituting ajury. The use of the words, “no more,” show this to be the sense; and the practice has been uniform, that if one of the thirteen be sick or unable to attend, the remaining twеlve can legally transact the business of the grand jury. We think, therefore, that the act of 1779, and the act оf 1811, are only directory as to the number, beyond which jurоrs shall not be sworn upon the grand jury — and that the number twelve, as heretofore, will constitute a valid grand jury. Affirm the judgment.