The record-union., 1891-03-12
SUPREME COURT DECISIONS.
Filled March 5, 1871
IN BANK.
THE PEOPLE, Respondent,

The appellant was convicted of murder
and appeals from the judgment, on the
Judgment-rou and a short bill of excep-
tlons which shows certain proceedings
had on motion to set aside the indict-
ment.
l. Appellant, upon his arraignment,
moved TO set aside the Indictment upon
the ground that he had not been held to
answer when the Grand Jury which in
dicted him was in session, and that the
Grand Jurors were prejudiced against
him, and had unqualified opinions that
he was guilty. He introduced on the mo-
ton an affidavit made by the County
Clerk and one made by himself, which
showed that he had not been held to
answer when he was indicted. and had
no opportunity to challenge the Grand
Jury. No other evidence was intro
duced. The bill of exceptions states that
defendant then offered to leave the
challenge to the said Grand Jurors who
indicted him to prove the chaltenge good,
and moved the court for reasonable time
and opportunity to examine each juror on
his Uoi1' dire in support of said challenge.
The court overruled said motion and
challenge, and defendant excepted" The
obscure. 1t probably was intended to
state that defendant moved for leave to
challenge the Grand Jurors, and thus
prove the challenge good" At
all events, the idea of appellant seems
to have been that he had the right to have
the discharged Grand Jurors reassembled
In court, and to proceed to challenge them
formally, and to examine them on their
OOir dire, just as he might have done be-
fore the Indictment was found. But this
is evidently mistaken notion of the
law. A challenge to Grand Juror is q
preliminary objection to the qualification
Of the juror, and its purpose is to prohibit
the juror from sitting and inquiring into
the charge against the party interposing
the challenge; and if the challenge be
allowed the juror 'cannot be present or
take part in the consideration of the
charge against the defendant who inter-
posed the challenge, or the deliberation
of the Grand Jury thereon" penal
Code, Section 900.) 1t is clear that after Il
Grand jury has completed its work and
been discharged the conditions which
make challenge possible no longer exist.
But defendant who has been indicted
without an opportunity to challenge the
Grand Jury is not without remedy. Sec
ton 995 of the Penal Code provides that
an Indictment may be set aside ''when
the defendant has not been held to answer
before the finding of the Indictment, on
any ground which aOould hare been
good ground for challenge, either to
the panel or to any individual Grand
Juror" This language clearly contem-
plates that the time for challenges has
passed, and provides that a defendant
may still prove any fact which would
have been good ground for challenge if
he had had an opportunity to interpose it
at a time when challenge was possible.
But the fact which would have been good
ground for challenge must be proven in
the ordinary way in which other facts are
proven, by theintroduction of evidence
either by the examination of the Jurors,
hxr fLD1. tA,af ovid Ln,.
this purpose, of course, defendant is en-
titled to the process of subpoena to COM
pei the attendance of his witnesses: but
there is no process by which discharged
Grand Jurors can be re-assembled i'll
their official character, and subjected to
the original process of challenging. For
the purpose of producing this evidence Il
defendant would, no doubt, upon proper
showing, be entitled to continuance;
but in the case at bar there was no such
showing. The appellant did not make any
affidavit of merits, or diligence; nor did
he, by affidavit or otherwise, show that
he could produce q single item of evil
dence tending to show the disqualified
ton of any Grand Juror. Indeed, he did
not make regular motion for continu-
ance, but seemed to rely upon the sup
posed right to have the court re-asssemble e
the jury.
In People VS.. Beatty IA Cal. 567). re-
lieu oH DN dpDtllalt on lnlS DOlllI, the
only question was whether a Grand Jury
could indict at all for crime committed
during their session, and after they had
been lmpaneled; and the remark
of the Justice who delivered the
opinion about the right of challenge upon
arraignment was evidently mere dictuA.
used in the progress of his reasoning, and
was not intended as the grave determina-
ton of question not before him. There
is nothing in the other two cases cited
people VS.. Turner, SO Cal. 376, and People
VS.. Gerger, 40 Cal. $50 which determines
anything adversely to the views above
stated. We therefore think that the court
below did not commit any error in the
matter of the motion to set aside the in
dictment.
2. The other points made by appellant
relate to instructions given to the Jury,
and the first one objected to is as follows:
'Fourth-During the argument of this
case, your attention has been called to a
number of cases in which it was claimed
that juries had improperly convicted the
defendants. While it is true that inno-
cent persons have been convicted in the
past, there is no proof in this case of any
such fact, and yoW are not justified an con-
Side7'i1ag such matters in determining the
guilt or innocence of this defendant-the
guilt or innocence of this defendant must
be determined from the evidence adj
mltted in the case, and not from SYM
pathy or prejudice. If all criminals
must go free because there is possibility
of jurors making mistakes, society might
as well disband." This instruction was
clearly erroneous. In the first place,
it is although perhaps
not fatally soon account of its
apparent hostility to the defendant.
The jury would be very apt to
get the impression from it that the
court considered the defendant as one of
the criminals" alluded to, and feared that
the jury would fail TO convict him on ac-
count of sympathy or prejudice In
the second place it is Objectionable as an
argument in favor of the prosecution on
the weight of evidence, and thus was an
invasion OF the province of the iury: for
Ito weigh the evidence and find
the facts, is in this State the ex-
elusive province of the jury; and
with the performance of that duty
palpable violation of the organic law''
People VS.. Dick, "a Cal, 666: People VS..
Fong Ching, 1S Cal. 173.) In the third
place, if it can be considered as direction
about law, and not an argument about
facts, 1t is still clearly erroneous. 1t was
probably founded on The People vs. Gro
min, GA Ca, 1911; but the instruction which
was approved in that case, although itself
somewhat extreme, was far different from
the one given in the case at bar In the
Cronln case the court, in its instruction
on this point, after stating the fact that
counsel for defendant had-as in the case
at bar-alluded to cases where upon cir
cumstantial evidence innocent men had
been convicted, told the Jury, among
other things, that 1.-The quotation of such
cases rs proper IN order to make the jury
HIS INHERITANCE.