Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-10-08


Jury is Grand Jury. To determine this ques-
ton and make the law appear plain to YOU it
will be necessary to examine the several pro-
visions OF the codes upon the subject.
Juries in this State are not the creatures of
the common law, but they are the creatures of
the statute law. Section 100 of the Code OF
Civil Procedure defines what a jury is. 1t pro-
vides that "a jury is a body of men temporarily
selected from the citizens OF particular district
and invested with power to present or indict a
person for public offense, or to try a question
OF fact" This section describes TO Grand and
Petit Juries. And as to Grand Juries Section
1872 of the same code provides that "a Grand
Jury is a body of men nineteen in number"
and Section 242 of the same code provides that
OF the persons summoned as Grand Jurors nine
teen shall constitute the Grand Jury. The law
making power is vested by the Constitution in
the Legislature, and that power has de-
clared thai nineteen men shall constitute a
Grand Jury, no more and no less; nor did the
Legislature provide that if one or more of the
Grand Jurors absent himself, or die or leave
the jurisdictionfof the Court, the remaining
number should constitute Grand Jury; and to
hold that such remaining number constituted a
Grand Jury would be to insert or interpolate
into these sections of the code what the Legis-
latuIe omitte d. Bot Section 1858 of the same
code limits the power of the Court by providing
that sin the construction of statutes the Office
of the Judge is simply to ascertain and declare
what is IN terms or IN substance contained in
the statutes, not to insert what has been omit
ted, or omit what has been inserted"
But contrary TO the express enactments of the
Legislature and notwithstanding Section 4 of
that code provides that 1.-The code establishes
the law OF this State respecting the sub, ects to
which it relates" majority OF the former su-
preme Court, closing their eyes to the light of
the codes, but pursuing the igniS fdtuls of the
dark swamp and quagmire of the common law,
in the case of the People VS.. Hunter (54 Cal 65)
declared that If some of the Grand Jurors should
die the remainder of them constitute Grand
Jury. This finds no sanction or support in the
codes, but was an act of judicial legislation
which is forbidden hQth nv the pOda and
stitution as tyrannical and dangerous law. At
the common law twenty-three men were sworn
as Grand Jurors, but any number of them, from
twelve TO twenty-three, sitting together as O
Grand Jury, constituted a legal Grand Jury
and the reasons given in the old books why
twenty-four men were not sworn as Grand
Jurors was that, If all set together, there would
be two two Grand Juries of twelve each and one
of them might ignore an indictment and the
other might find 1t to be true bill and thus
produce confusion. But there is no warrant in
our codes Tor q common law Grand Jury. 1t
is our duty to forget the common law and look
to the codes alone for our guide as to what con-
stitutes a Grand Jury, and Tor definition of
their powers and duties.
1t should be observed that Chief Justice Wal
lace d1ssented from the decision in the People
VS.. Hunter and Justice Crockett expressed no
opinion; The Court in deciding that case
passed the provisions of the Penal Code in ST.
lence. This was WELL Those provisions and
the decision cannot be reconciled But the
provisions of the Penal Code and the Code of
NlNil EIOCeuuTe are IN harmony AID constitute
an intelligent system of laws for the creation of
Grand Juries and defining their powers and
duties.
Section 9o5 of the Penal Code provides that.
the Grand Jury being impaneled and sworn
must be charged by the Court" and Section 9O6
OF the same code provides that 'the Grand
Jury must then retire to some private room and
inquire into offenses equitable by them" It
will be observed that it is the Grand Jury, ct a
part of them, who must retire into a private
room and there inquire into offenses cognizable
by the Grand Jury. And as nineteen-no more
no less-by virtue of the law, constitute the
Grand Jury, the meaning of this section is that
not part only, but the whole OF the Grand
Jury, shall not only retire but be present in a
private loom when the Grand Jury inquiries
into ofenses cognizable by them. This is the
general rule, but the Legislature as it well
might, has established two exceptions to 1t,
They are these:
swer for public offense he may, by virtue of
Section 1874 OF the Penal Code, at the time of the
formation of the Grand Jury, challenge an in
olvldual Grand Juror for any of the causes spe-
CITED IN Section 500 of the same code. And il
the challenge is allowed by the Court then, ac-
cording to Section 800 Of that code, the person
challenged cannot be present or take part in
the consideration of the charge against the de-
fendant who nterposed the challenge or the
deliberations of the Grand Jury thereon"
Second-The other exception is that if a defend
ant has not been held to answer, In that event,
none OF the Grand Jurors is the prosecutor, or a
witness against defendant, such Juror cannot be
present while the charge is under consideration
by the Graz Jury. and If he should be present
Section 995 of the Penal Court makes it the duty
OF the Court to set aside the Indictment
These are the only exceptions provided for by
the Legislature, and if any other exceptions had
been intended the Legislature would have said
So and therefore in all other cases the entire
Grand Jury must be present at their deliber-
atoms.
However. IL does not require the concurrence
of all the Grand Jurors to find either present.
ment or indictment. Section 93l of the Penal
Code provides that "a presentment cannot be
found without the concurrence of at least twelve
Strand Jurors, and section $40 provides that
IAN Indictment cannot be found without tie
concurrence of at least twelve Grand Jurors
From these sections the implication is that a
presentment or an Indictment may be found by
the concurrence of twelve Grand Jurors; but
there is nothing in them from which it can be
implied that the twelve Grand Jurors could in
quire into an offense and find presentment or
indictment in the absence of the other Grand
Jurors.
Section $50 of the same code provides that
Wnen the presentment is found il must be pre-
scented by the foreman, in the presence of the
Grand Jury, to the Court, and Section 9i4 pro-
yldes that IAN indictment, when found by the
Grand Jury, must be presented by their foreman
in their presence to the Court" These sections
must be presented to the Court in the presence
OF the Grand Jury-not in the prese ce OF q
part of the Grand Jury.
We have seen that both Grand and Petit
State. Then, as in case of trial jury in a civil
action, twelve constitute the jury but nine NAV
decide the verdict: 50 nineteen men constitute
a Grand Jury, but twelve concuiring may find a
presetnment or indictment: but in both cases
the entire jury must be in the jury room while
celebrating. Both the people and defendant
are as much entitled to the presence, considera.
ton and deliberate Judgment of each Grand
Juror in the investigation of an offense as to
the credibllity Of the witnesses and the effect of
the evidence before them, though twelve may
decide, as the parties in civil action are en-
titled TO the presence, consideration and DELHI
crate Judgment of each juror as to the CREDIBLE
ity of thei witnesses and effect of the evidence
in the case they are impaneled to try, though
nine may decide the verdict. The Grand and
Petit Juries derive their respective powers from
the same source-the statute law OF the State
and not from the uncertain snd eyer-yaryine
Inles OF the common law; and therefore the
codes must be your guide.
Then, gentlemen of the jury you are in
struoted that as no challenge TO any individusi
member of your body has been intereosed or
allowed by the Court, your entire number must
sit together while tnguiring into offenses cog
nizable by the Grand Jury, except as 10 eases
coming within the second exceptions men
toned.
Gentlemen, there is another point which the
Court deems 1t proper 10 direct your attention
to at this time. IL is this: The Constitution of
the StaIe requires the Court to cause to be drawn
and summoned a Grand Jury at least once a
year. This Is the language of the Constitution:
"A Grand Jury shall be drawn aud summoned
at least once year in each county. The term
year" as used in this provision in the Consii-
tuition, means the calendar year, and it would
seem that IL precludes Grand Jury drawn and
summoned for one year from continuing It's ex-
isteuce into another. II it continued ITS exist
ence from one year into another, at what time
would it be dissolved by operation of law? Ii il
continued INTO the second year why not con-
tinue 20 the last day of the year and preclude
the Court from causing Grand Jury for that
year to be drawn and summoned?
IL would seem to be q fair construction of that
constitutional provision that with the close of
the year, If not sooner discharged By the Court,
the Grand Jury drawn and summoned for that
year was dissolved. However. il is not neces-
sary TO decide that question now. as the Court
VIII discharge you at the close of the year. If
not sooner. II Is hoped that you will proceed
with the business which may be submitted to
yoa diligently, and close your lsbors as soon as
convenient.
The new Grand Jury then retired. An
tone Wertheim was elected Secretary, and
an adjournment taken until 10 o'clock to-
day.
IT IS a fact, that Hoods Sarsaparilla