50 Ind. 170 | Ind. | 1875
This was an indictment of the appellee, found at the July term, 1875, of the court below, by a grand jury consisting of twelve men theretofore selected and impanelled in accordance with the law as it existed before the supposed taking effect of the act of March 13th, 1875, hereinafter noticed. The indictment was found after the taking effect of the act.
The question presented is, whether the grand jury for that term of the court should have consisted of twelve men, in accordance with former laws, or of six men only, as is provided for in the act above mentioned. The court below held the indictment bad, as having been found by a grand jury consisting of too many members, and not properly constituted, and rendered judgment accordingly. The State, having excepted, appeals and seeks a reversal.
The following is the act alluded to :
“An act regulating the number of grand jurors, and the manner of their selection. Approved March 13th, 1875.
“ Section 1. Be it enacted by the General Assembly of the State of Indiana, that a grand jury shall be composed of six reputable freeholders and residents of the county.
“ Sec. 3. The concurrence of five of the six grand jurors shall be necessary to find an indictment; provided, that this act shall not be construed to affect, in any way, pending indictments or indictments which may be found by any grand juror [jury], before this act takes effect, but the same shall be tried and disposed of as if this act had not been passed.
“ Sec. 4. All laws and parts of laws coming in conflict with any of the provisions of this act are hereby repealed.” Acts Spec. Ses. 1875, p. 54.
This act had not been passed on the first Monday of March, 1875, which is the day fixed by law for the commencement of the first regular session of the board of commissioners in each year. 3 Ind Stat. 131. By the statute above set out, it will be seen that it is made the duty of the board to make the
But it is.provided in the act of March 4th, 1852, that “if the board of commissioners shall fail to select the grand jurors at their first annual session, they shall select at the next or any other session.” 2 G. & H. 433, sec. 8. This statutory provision should probably be regarded as continued in force, but it does not help the appellee.
A selection of grand jurors, before the act of .1875 was passed or took effect, in accordance with the law in force at the time of selection, can in no sense be said to be a failure to select, because the selection was not made in accordance with a law not then in existence. There could have been no legal selection made at the March session of the board of commissioners in the year 1875, in accordance with the subsequent act of 1875 ; and a failure to select according to that act, the selection being made in accordance with the law in force at the time, is not a failure to select within the spirit and meaning of section 8 above quoted from the act of 1852; and hence that section has no application to the case. We are of opinion, therefore, that grand jurors duly selected before the act of 1875 took effect, in accordance with the' law in force at the time of the selection, are legal grand jurors, and will continue to be such until selections shall be made under the provisions of the act of 1875, or until their functions shall be otherwise legally terminated.
The third section of the act of 1875 provides that “ this act
This construction saves from the repealing clause of the act all laws necessary to sustain indictments found, or to be found, by grand juries selected and empanelled under former laws, and before the selections could be made under the act, because such laws are not in conflict with the act. The .repealing clause may not effect any greater repeal than would be done by implication without it; for it only repeals such laws as are in conflict with some of the provisions. By the terms of the law itself, as we construe it, such laws as are necessary to sustain indictments found as above stated are saved from the repeal, because they are not in conflict with the act.
From these considerations, we are of the opinion that the court below erred in holding the indictment not to have been found by a proper and competent grand jury.
The judgment below is reversed, with costs, and the cause remanded for further proceedings, in accordance with this opinion.