State v. Witt
55 P. 1053
Or.
1899
Check Treatment
Mr. Justice Bean

delivered the opinion.

*595Thе defendant was indicted and convicted of the crime of having in his possession an obscene writing, with intent to exhibit the same. After being sentenced, his counsel moved the court to set aside and vacate the judgment, ‍‌​​​​​​​​​‌‌‌​​​‌‌​​‌​​​‌​‌‌​​‌​‌‌‌​​‌​‌‌‌​‌‌​​​‍on the ground that the court was without jurisdiction to try the case, because the grand jury which found the indictment against him was not legally constituted. This motion was denied, and the defendant appeals.

The facts upon which the motion was based are that, after the grand jury for the term had been duly and regularly impaneled and sworn according to lav/, one of their number became ill, and was excused, and the court thereupon directed the clerk to draw by lot, frоm the jury box, another juror, to serve in his place, which was done аccordingly, although at the time there were 12 jurors in attendancе upon the court whose names were not in the jury box, they having been previously drawn and impaneled as jurors in a civil case ‍‌​​​​​​​​​‌‌‌​​​‌‌​​‌​​​‌​‌‌​​‌​‌‌‌​​‌​‌‌‌​‌‌​​​‍then on trial. Thereafter, the indictment upon which the defendant was tried and convicted was returned. The contention for the defendant is thаt the grand jury, as thus constituted, was an illegal body, because the cоnstitution provides (Const, article VII, § 18) that the grand jtiry shall be chosen by lot from the whole number of jurors in attendance at the court, and the argument is that the choosing of one member thereof contrary tо the provisions of such section rendered the entire body illegal and its acts void.

The authorities upon the general subject as to how, when, and to what extent a defendant may question the regularity or validity of a grand jury which returns an indictment against him are ‍‌​​​​​​​​​‌‌‌​​​‌‌​​‌​​​‌​‌‌​​‌​‌‌‌​​‌​‌‌‌​‌‌​​​‍in confusion, but they аre generally agreed that when an indictment is returned by a body composed of the requisite number of qualified persons, chosen undеr a valid law, any objection on *596account of irregularity in the mаnner of the drawing or forming of the grand jury, ‍‌​​​​​​​​​‌‌‌​​​‌‌​​‌​​​‌​‌‌​​‌​‌‌‌​​‌​‌‌‌​‌‌​​​‍if permissible to the defendant at all, must be made before plea to the merits. Cooper v. State, 120 Ind. 380 (22 N. E. 320) ; State v. Gollyer, 17 Nev. 275 (30 Pac. 891) ; Com. v. Parker, 2 Pick. 550; U. S. v. Gale, 109 U. S. 65 (3 Sup. Ct. 1).

There is a distinction to be noted in the books between the acts of a body assuming tо be a grand jury, but wholly unauthorized, or chosen by an illegal and unwarranted method, and one organized under a valid law, though its provisions arе ‍‌​​​​​​​​​‌‌‌​​​‌‌​​‌​​​‌​‌‌​​‌​‌‌‌​​‌​‌‌‌​‌‌​​​‍not strictly and accurately followed. In the former case it is hеld in some jurisdictions that the indictment and all subsequent proceedings thеreunder are absolutely void, and the objection may be taken at any time, even on appeal: Lott v. State, 18 Tex. App. 627; McNeese v. State, 19 Tex. App. 48; Harrell v. State, 22 Tex. App. 692 (3 S. W. 479); Finley v. State, 61 Ala. 201; Peck v. State, 63 Ala. 201. But in the latter case the indictment is not void, and an objection to the regularity of the formаtion and organization of the grand jury cannot be taken after verdict and judgment. The case at hand comes within this rule. The .statute (chаpter V, title I, Cr. Code) under which the grand jury that indicted the defendant was fоrmed and organized is admitted to be valid, and in conformity with the requiremеnts of the constitution, and the only objection made is that the court did not strictly follow its terms and provisions. This did not render the grand jury an illegal bоdy, or its proceedings void, and the objection to the regularity оf its organization, if open to the defendant at all, should have been taken advantage of before plea. The case of State v. Lawrence, 12 Or. 297 (7 Pac. 116), is not in point, for two reasons : First, the grand jury which indicted Lawrence was chosen and organized under an unconstitu*597tional and void law; and, second, the objection to the validity of the grand jury was made before plea. It follows from these views that the judgment of the court below must be affirmed, and it is so ordered.

Affirmed.