Movement in that direction was made possible by the ruling by the Supreme Court in Hurtado v. People of State of California, 1884, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 that the due process of law required of the States by the Fourteenth Amendment was not meant to include the institution and procedure of a grand jury in any case. In support of the wisdom of the policy of the Virgin Islands in this regard we think it proper to quote from the thoughtful opinion of the Criminal Court of Appeals of Oklahoma in Blake v. State, 1932, 54 Okla. Cr. 62, 66-67, 14 P.2d 240, 242, as follows: "The origin of the grand jury system is lost in obscurity.
Some seem to regard it now as virtually useless. Blake v. State, 54 Okl.Cr. 62, 14 P.2d 240. If a literal stenographic transcript of the testimony of a defendant and of the witnesses endorsed on the indictment is furnished to the defendant it is most likely, and indeed almost certain, that it will contain colloquies, interrogations and remarks by grand jury members and expressions of their opinions, any and all of which would violate, directly or indirectly, the prohibitions of Β§ 540.310.
We find nothing persuasive on the question before us in the two opinions of the Criminal Court of Appeals cited in the District Judges' order. In one of them, Hartgraves v. State, 5 Okla. Cr. 266, 114 P. 343, 344, 33 L.R.A., N.S., 568, it was said with reference to our constitutional provision that: "It was intended that grand juries should only be convened in cases of emergency", and in the other, Blake v. State, 54 Okla. Cr. 62, 14 P.2d 240, 242, it is said: "It is wise to provide, as has been done in this State, that a grand jury may be called where prosecuting officers will not act * * *". To us it seems clear from reading those opinions as a whole that the quoted statements were made in showing the difference between the need for, and use of, the grand jury in modern times as distinguished from the days when such matters were all controlled by the common law; and to demonstrate that under our modern statutory methods of prosecuting crime, there is usually no need to invoke the power to call a grand jury. In both cases, however, it was recognized that it was good and wise for the constitution to provide a means of exercising such power, so that it could be used when deemed desirable or necessary.
The court has no power or authority to dismiss or excuse a grand juror from the grand jury after he is sworn and empanelled. Nor has the court any power or authority to add or empanel a new grand juror, except in the cases provided in 19-908, I. C. A. The action of the court in excusing a grand juror and adding a new member to fill the panel, except in the case provided in said section of the statute above stated, is void and without effect. (28 C.J., note 13; sec. 19-908, I. C. A.; State v. Russell, 90 Iowa, 569, 58 N.W. 915, 28 L.R.A. 195; State v. Pickus, 63 S.D. 209, 257 N.W. 284; State v. Johnson, 50 S.D. 388, 210 N.W. 350. 28 C.J. 795, sec. 79; Keitler v. State, (Iowa) 4 Greene, 291; Portis v. Mississippi, 23 Miss. 578; State v. McGarrity, 140 La. 436, 73 So. 259; State v. Smith, 145 La. 1091, 83 So. 264; Blake v. State, 54 Okl. Crim. 62, 14 P.2d 240.) The indictment in a criminal case may be amended by the prosecuting attorney without leave of the court, at any time before the appellant pleads, and at any time thereafter, at the discretion of the court where it can be done without prejudice to the substantial rights of the appellant, an information or indictment cannot be amended so as to change an offense other than that for which a defendant has been held to answer.
ΒΆ 10 The grand jury is deeply rooted in our common-law heritage; its ancient origins are "lost in obscurity." Blake v. State, 54 Okla. Cr. 62, 66, 14 P.2d 240, 242 (1932). At common law, grand juries were composed of residents of a particular county and charged with investigating matters in that particular county.
An Information is filed by the prosecutor while an Indictment is brought by a grand jury. In the vast majority of instances, criminal prosecutions are by Information. It was observed in Blake v. State, 54 Okla. Cr. 62, 14 P.2d 240 (1932), that, "Where prosecuting officers are willing to act there is rarely any reason why this cumbersome [grand jury] proceeding should be invoked." Thus, the grand jury Indictment is a safeguard against a prosecutor's inaction; but it is not a means of judicial review.
Hammers v. State, supra. In Blake v. State, 54 Okla. Cr. 62, 14 P.2d 240, 243 (1932), quoting from Blau v. State, 82 Miss. 514, 34 So. 153, 155, it was said: "The grand jury may at all reasonable times during the discharge of their duties appeal either to the court or to the prosecuting attorney for advice, but this advice must be restricted to matter of law, sufficiency of service, and proper dispatch of the public business.
This Court has spoken on the conduct complained of by the defendant. In Blake v. State, 54 Okla. Cr. 62, 14 P.2d 240, 243, quoting from Blau v. State, 82 Miss. 514, 34 So. 153, 155, it was said: "The grand jury may at all reasonable times during the discharge of their duties appeal either to the court or to the prosecuting attorney for advice, but this advice must be restricted to matter of law, sufficiency of service, and proper dispatch of the public business.