In Fitts v. Superior Court (1936) 6 Cal.2d 230, the Supreme Court was faced with deciding the validity of a grand jury accusation, seeking under former section 758 to remove a district attorney for misconduct in office, that had been approved by only 11 grand jurors. Fitts noted section 758 was "silent as to the number of jurors who must concur in order to return a valid accusation. No other section of the code, nor does any statute of this state, fix the number of grand jurors who must concur in order to return an accusation. It is contended by respondent superior court that under such circumstances the general provisions of section 7, subdivision 17 of the Penal Code are applicable which provide that 'Words giving a joint authority to three or more public officers, or other persons, are construed as giving authority to a majority of them, unless it be otherwise expressed in the act giving authority.' " (Fitts v. Superior Court, supra, at p. 235.) The district attorney urged the court to look to the common law rule requiring the concurrence of at least 12 grand jurors. In reply, the superior court "argued that our grand jury is not the one known to the common law, but is a statutory body . . . ." (Id. at p. 233.) To resolve this issue, Fitts first examined the common law tradition, citing Blackstone, Edward Coke and other authorities, from which it concluded "that under the common law the grand jury could only act upon the concurrence or agreement of twelve of their number." (Fitts v. Superior Court, supra, 6 Cal.2d at p. 240.) Fitts then applied this rule to section 758, reasoning that the California grand jury is not a purely statutory creation. "The members of the first constitutional convention in providing for a grand jury must have had in mind the grand jury as known to the common law. This the respondents admit, but further contend that the constitutional convention of 1879 adopted an entirely different system than the common law system provided for in the Constitution of 1849. We find nothing to justify this conclusion . . . . The Constitution of 1879 did not attempt to change the historic character of the grand jury, and the system its members had in mind was evidently the same system that had come down to them from the common law. It is in no sense a statutory grand jury as distinguished from the common-law grand jury as claimed by the respondents. . . . We must conclude, therefore, that the Constitution of 1879 when it refers to the grand jury refers to it as it had always been known and understood prior thereto." (Fitts v. Superior Court, supra, at pp. 240-241.)