¶1dissenting:
¶2I am constrained to dissent from the majority opinions this day handed down by this Court in the cases of State of West Virginia v. Mitchell Judd Gory, State of West Virginia v. John Joseph Carduff, State of West Virginia v. Sam Curotz, and State of West Virginia v. John Cirullo. Specifically and in all deference to the members of the Court who have participated in the majority opinions, I disagree with the holding of the Court, as set forth in the majority opinions, that the provision of Section 2, Article 2, Chapter 52, Code, 1931, that grand jury commissioners shall prepare a list during the preceding levy term of the county court, is directory and that there has been substantial compliance with the time provision of the statute. In all four of these cases the grand jury list prepared by the grand jury commissioners in point of time varied from seventy-eight days to one hundred and twelve days after the adjournment of the county court *72which had been convened for levy purposes. I agree with the majority opinions to the extent that the Court held therein that the statutory provision requiring the grand jury commissioners to prepare a, list of not less than one hundred nor more than two hundred persons for grand jury service is mandatory; but I also regard as mandatory the provision of the statute to the effect that the grand jury list shall be prepared by the grand jury commissioners during the levy session of the county court preceding the term of the trial court selecting and impanelling the grand jury, and even if this provision as to time should be regarded as directory, the length of time in which the lists in the instant cases were prepared after the adjournment of the levy term of the County Court of Harrison County is, in my opinion, not a reasonable compliance with the statute.
¶3In many respects the integrity of a grand jury which renders an indictment is more important than the integrity of a petit jury. On the trial of a criminal case, if a valid indictment has been returned against the defendant, such defendant must before conviction be proved guilty beyond a reasonable doubt. On the rendering of an indictment by a grand jury no such rule applies. A grand jury may indict a defendant either with or without just cause on the belief that a crime probably has been committed. It has been my personal experience that the mere indictment of a person for a crime may impair that person’s position in the community in which he lives, even though the indicted person may eventually be found not guilty by a petit jury. At the trial of a criminal case, a defendant, who has been indicted for a crime, has the right through his counsel to challenge members of the petit jury by which he is to be tried. This is not so as to a grand jury.
¶4Moreover, Code, 52-2-2 and 3 were enacted by the Legislature to implement Article VI, Section 39, of the Constitution of West Virginia, which provides: “The Legislature shall not pass local or special laws in any of the following enumerated cases; that is to say, for … *73Summoning or impaneling grand or petit juries; … Thus the procedure for the selecting and drawing of juries, grand and petit, under the West Virginia Constitution, must be uniform, and the Legislature alone is the only governmental body which can implement the constitutional provision. It has done so in the enactment of Code, 52-2-2, which provides in part: “Such commissioners shall, at the levy term of the county court each year, and at any other time when required by the court which appointed them, or the judge thereof in vacation, prepare a list of not less than one hundred nor more than two hundred qualified persons of their county, for grand jury service, chosen from the respective magisterial districts thereof, as nearly as may be in proportion to the population of the districts. …” Code, 52-2-2, being an implementing statute, should be interpreted as though it were embodied in the Constitution itself. In the interpretation of constitutional provisions the word “shall” usually is used in the mandatory sense, and the word “shall” in the implementing statute providing for the selection and impanelling of grand juries, Code, 52-2-2, is, in my opinion, used by the Legislature in the mandatory sense, and is clearly indicative of the legislative intent that grand jury commissioners shall prepare the list provided for by the statute within the levy term of the county court, which was not done in any of the four cases to which this dissent is filed. Clearly, in my opinion, the prime purpose of the constitutional provision above quoted, as well as the implementing statute, was to establish uniformity throughout this State in the manner of impanelling of grand juries. In State v. Howard, 137 W. Va. 519, 73 S. E. 2d 18, this Court held that a grand jury selected from a list of two commissioners, one of whom was selected by the Judge of the Criminal Court of Cabell County, as required by statute, and the other, though there was no constitutional or statutory provision authorizing the same, was illegally appointed by the Clerk of the Criminal Court of Cabell County. In State v. Stafford, 89 W. Va. 301, 109 S. E. 326, this Court at page 306 of the Official West Virginia Reports inferential*74ly at least stressed the necessity of having grand jury commissioners prepare the list during the levy term of the county court, saying: “… A list of jurors [grand jurors] prepared and delivered on any day of this session [the levy term of the county court] so beginning and ending would be ‘at the levy term.’ ”
¶5With full realization of the import of what I am about to say, and with all deference to the members of the Court who have joined in the majority opinions to which this dissent is filed, I simply say that in holding that the grand jury lists in Harrison County made after the adjournment of the levy term of the county court, in one case one hundred and twelve days and in the other cases seventy-eight days, is a striking blow at the safeguards which are inherent in the criminal practice and procedure of this State.