GRAND JURY. A body of men, consist ing at common law of not less than twelve nor more than twenty-four, respectively re turned by the sheriff of every county to every session of the peace, oyer and terminer and general gaol delivery, to whom indict ments are preferred. 4 Bla. Com. 302 ; 1 Chitty, Cr. Law 310, 311; 1 Jur. Soc. English v. State, 31 Fla. 340, 356, 12 South. 689.
There is reason to believe that this Institution ex isted among the Saxons ; Crabb, Eng. Law IL By the constitution of Clarendon, enacted 10 Hen. II. (A. D. 1164), it is provided that "if such men were suspected whom none wished or dared .to ac cuse, the sheriff, being thereto required by the bish op, should swear twelve men of the neighborhood, or village, to declare the truth" respecting such supposed crime, the jurors being summoned as wit nesses or accusers rather than judges. It seems to be pretty certain that this statute either established grand juries, if this institution did not exist before, or reorganized them if they already existed ; 1. Spence, Eq. Jur. 63. But a later work (passing over the question of the relation of the old Prankish inquest to the initiation of criminal proceedings by presentment by indictment) says of the accusing jury of the time of Henry II: "The ancestors of our 'grand jurors' are from the first neither ex actly accusers, nor exacjly witnesses ; they are to give voice to common repute." 2 Poll. & Maitl. 639 ; 1 id. 130 ; 2 id, 644; and the conclusion reached is, "a great deal yet remained to he done before that process of indictment by a 'grand jury' and trial by a 'petty jury' with which we are all fa miliar would have been established. The details of this process will never be known until large piles of records have been systematically perused. This task we must leave for the historian of the four teenth century. Apparently the change was inti mately connected with the discontinuance of those cumbrous old eyres which brought 'the whole coun ty' and every hundred and vill in it before the eyes of the justices:" 2 id. 646.
Organization. Where the common law prevails, Unmodified by statutory or con stitutional provisions, the law requires that twenty-four citizens shall be summoned to attend as grand jurors; but in practice not more than twenty-three are sworn, because of the inconvenience which might arise of having twelve, who are sufficient to find a true bill, opposed to another twelve who might be against it; 2 Hale, Pl. Cr. 161; 1 Bish. Cr. Proc. 854; 6 Ad. & EL 236; People v. King, 2 Caines (N. Y.) 98. There is no distinction between the qualification of grand and petit jurors; State v. Williams, 35 S. C. 344, 14 S. E. 819.
The number is a matter of local regulation, and while in the main the common-law sys tem has been continued, there is in this country a growing disposition to reduce the number of jurors by statute where it was practicable, and by constitutional provision where that was held to be necessary. It is beyond the present purpose to state in detail all the changes, or to do more than to indi cate the existence of a prevailing tendency to simplify the proceedings, which, however, is coupled with a great respect for the grand jury as one of the common-law institutions protected by constitutional guaranty.
The question has been much discussed whether in states having constitutional pro visions for indictment by a grand jury, a legislative change in the number required to find an indictment at common law is permissible. In several states this question has been answered in the negative where the constitutional provision specified "indict ment by grand jury ;" at least so far as to forbid a change making less than twelve suf ficient to find an indictment; State v. Bar ker, 107 N. C. 913, 12 S. E. 115, 10 L. R. A. 50; Donald v. State, 31 Fla. 255, 12 South. 695; English v. State, 31 Fla. 340, 12 South. 689 ; •Brucker v. State, 16 Wis. 334. See Thurman v. State, 25 Ga. 220. But the pro vision of the federal constitution securing the "due process of law" does not prevent the states from varying the common-law rule as to a grand jury; Hausenfluck v. Coro., 85 Va. 702, 8 S. E. 683; Parker v. People, 13 Colo. 155, 21 Pac. 1120, 4 L. R. A. 803 ; or even from dispensing with it ; Hurtado v. Califor nia, 110 U. S. 516, 4 Sup. Ct. 111, 292, 28 L. Ed. 232. Where the state constitution pre scribes a number it is obligatory; Ex parte Reynolds, 35 Tex. 437, 34 S. W. 120, 60 Am. St. Rep. 54; but wnere the grand jury consisted of less tan the required num ber but as many jurors concurred as were necessary to find an indictment it was suffi cient; State v. Belvel, 89 Ia. 405, 56 N. W. 545, 27 L. R. A. 846; and where the requisite number do concur, the fact that the panel was not full, either by reason of the dis charge, or improper excusing of one or more members, or any like cause, does not invali date an indictment; Drake v. State, 25 Tex. App. 293, 7 S. W. 868; Jackson v. State, 25 Tex. App. 314, 7 S. W. 872; State v. Billings, 77 Ia. 417, 42 N. W. 456 ; U. S. v. Belvin, 46 Fed. 381; Williams v. State, 69 Ga. 11; State v. Ward, 60 Vt. 142, 14 Atl. 187; Beasley v. People, 89 Ill. 571; State v. Fee, 19 Wis. 563; Blevins v. State, 68 Ala. 92. A discharge of a juror is presumed to be proper; Wallis v. State, 54 Ark. 611, 16 S. W. 821.; State v. Wingate, 4 Ind. 193; but if improper and void, it does not affect the legal organiza tion ; Smith v. State, 19 Tex. App. 95. It will be presumed that a grand jury was le gally organized; State v. Dilworth, 34 La. Ann. 216; Wilson v. People, 3 Colo. 325; and where the court has power to fill up the panel it will be presumed to have been right ly done ; Burrell v. State, 129 Ind. 290, 28 N. E. 699. It has been held that when, on calling the grand jury, some of them fail to appear, the court may orally direct the sher iff to fill the vacancy without issuing a pre cept ; State v. Miller, 53 Ia. 84, 4 N. W. 838; id., 53 Ia. 154, 4 N. W. 900; in other states a new venire facias is necessary ; Pouch v. State, 63 Ala. 163; State v. Chase, 20 N. J. L. 218. The power to excuse grand jurors confers upon the court, by implication, the power to fill the vacancy ; Burrell v. State, 129 Ind. 290, 28 N. E. 699. If more are pres ent than the statute permits the indictment is bad; Box v. State, 34 Miss. 614; U. S. v.