State v. Marsh, 13 Kan. 596

State v. Marsh

13 Kan. 596 | Kan. | 1874

The opinion of the court was delivered by

Brewer, J.:

The defendant was indicted by the grand jury at the March Term of the district court of Mitchell county. He objected that the grand jury was not legally constituted, and raised this objection by a plea to the jurisdiction, a plea in abatement, a motion to quash the indictment, and a motion in arrest of judgment; so that if the objection was well taken he placed himself in a proper position to avail himself of it. The grand jury was drawn in pursuance of an order made by the judge of the district court in vacation. The record shows that on the first day of the term such jury was duly impanneled, sworn and charged. The statute provides that “Grand juries shall not hereafter be drawn, summoned or required to attend the sittings of any court in any county in this state, unless ordered by the court.” Grim. Code, §75, Gen. Stat., page 833; and see also, Gen. Stat., p. 535, § 9; p. 53.8, § 24; p. 835, § 89. Was this grand jury properly constituted? and if not, was the defect fatal to the indictment? Section 79 of the criminal code provides that “no plea in abatement, or other objection, shall be taken to any grand jury duly charged and sworn, for any alleged irregularity in their selection, unless such irregularity, in the opinion of the court, amounts to corruption, in which case such plea or objection shall be received.” It is claimed by counsel for appellant that a grand jury is created only by the order of the court, and that without such order it has no legal existence; and that the section last quoted refers simply to the manner in which the order for its creation is executed, and not to the order itself. We think the section is broader in its scope, and that it includes everything antecedent to the impanneling of the jury. The section first quoted is a restriction on the calling, not the impanneling of the jury. The jury is impanneled and charged by the court, so that thereby the court recognizes that body as a valid and legal grand *600jury. And we think this section means, that whatever body is duly charged and sworn as a grand jury, and recognized as such by the court, is to be taken, like any other officer or tribunal, as a de facto jury, .whose acts are valid as to the public; and that no objection to the manner of its creation will be recognized unless it be one that implies corruption. A de facto prosecuting attorney, legally prosecutes; a de facto judge, legally tries and sentences; and a de facto grand jury may with equal propriety legally indict.

The legislature has elsewhere used this word “selection,” as embracing the order for the grand jury as well as the manner of its execution. Ch. 54 of the Gen. Stat. is entitled, “An act providing for the selection and summoning of grand and petit jurors;” and §§ 21, 23 and 24 provide for the orders of the court or judge.

There being no other question presented, the judgment of the district court must be affirmed.

—It is understood that another case against the same defendant, and the cases of The State v. Seright, and The State v. Lowry, brought to this court by appeal, and now pending here, involve only the same question, and must be decided in the same way.

All the Justices concurring.