The record-union., 1892-03-01
MILLER GOES FREE.
The Grand Jury's Indictment Declared
Null and Void.
A Proper Majority of the Jury Did
Not Vote III the Affirmative
The Decision.

/ Superior Judge Catlin handed down {
decision yesterday in the ease of f. O.
Miller. who was indicted by the late
Grand Jury for completely in the alleged
lieu land frauds.
| Miller's attorneys, Grove L. johnson
of this city and a. C. Freeman of Sar
francisco, moved the court to set aside
the Indictment on the ground thai
twelve of the Grand Jurors-the lawful
maiority-did not vote for it, The Grand
Jurors were examined with reference to
the matter. and the case was then sub
mitted. The court finds that the indict-
ment was illegal. The facts Of the case
are fully set forth in the decision which
is as follows:
Section $40 of the Penal Code provides
that An indictment cannot be found
without the concurrence of at least twelve
Grand Jurors The testimony shows
that the Grand Jurors, on December 18th
or 18th, voted, by the requisite number.
in favor of finding the bill; that subse-
quently, some time prior to the presenta-
ton of the indictment to the court, which
was on the following Monday, the 2lst OF
December, it was made known to the
/ jury that the defendant desired to appear
before them and make an explanation.
In consequence of this motion was
made to open the matter and reconsider
the same.
This motion was defeated by vote OF
ten jurors against it to eight for it.
Immediately following this a motion
was made to present the Indictment to
the court, upon which motion vote was
taken, With ten jurors for il and eight
against it.
These proceedings took place on Mon
day, December 2lst The indictment had
then been drawn up by the District At
torney, and was before the iury for final
action when these votes were taken.
N further proceedings were taken in
relation to the bill after the vote last
mentioned and the time subsequently,,
on the same day, when the indictment
was presented to the court in the pres
ence of the jury and filed by the Clerk.
"The question is: Was this Indictment
found with the concurrence of twelve
jurors? It seems to me plain that the
two votes mentioned taken as the last
action OF the jury as a body upon the
question Of whether the defendant should
be indicted of the offense charged, show
that there was concurrence on the part of
only ten members.
The vote of eight members in favor of
u reconsideration would not alone per-
haps indicate want of concurrence on
! their part in favor of the bill, as such
mem bers might be willing to rehear the
matter withoutany intention of voting d if
/ terently from the way they had originally
voted at the first consideration; hut whep
eight members, presumably the So
eight, vote directly against presenting the
bill, it becomes a most decisive mani
| festation, not only of their lack of concur
renee, but to their active hostility to the
bill.
THE fact that the bill was presented
soon after, on the same day, to the court.
in the presence of the jury, does not over,
! come the effect OF this showing, that only
ten jurors favored the presentation, be-
! cause the facts in evidence show that in
the lury-room no further action was
taken, after the vote by which it was
shown that only ten members conquered
IN the final and necessary act of present.
ing the Dill TO the court. Let the indict-
ment be set aside,i