Los Angeles herald., 1893-01-15
WILLIAM PAUL'S REGISTRATION.
Judge Smith Holds the Grand
Jury Legal Body.
Two Brief Opinions Received from
the Supreme Court.
Happenings Yesterday in the Courts.
Cuzman + and Guilty-Notes
of Gases Acted On.
New Euits.

charged with illegal registratlon. lhe
principal point which counsel raised
was that the grand jury which returned
the indictment against the defendant
was illegally drawn and impaneled, the
same points having been raised in other
cases now pending in the superior court.
Judge Smith, in overruling the de-
murrer, handed down the following
opinion in the case:
The motion to set aside, though cover
ing much ground, may be condemned
under three heads.
First-That the Indictment is not
found, Endorsed and presented as pre-
scribed in the code.
Second-That the members of the
grand jury who found the indictment
were go biased and prejudiced against
the defendant as to prevent them from
acting impartially in the matter.
Third-That the grand jury was an
illegal body.
AS to the first objection, by an in
spection Of the indictment it seems to
comply in every portion with sections
940, 943, 944. 1t was properly found,
indorsed and presented in accordance
with those sections. Irregularities in
selecting, summoning and impaneling
the jury cannot be considered under
that head. (See People vs.. Southwell,
46 Gal. 141, People vs. Colby, 81 Gal. 81,
and People vs. Hunter, 81 Gal. 65.)
Second, that the grand jury was
biased, etc. Under this head counsel
contends that because the same grand
jury that found the indictment in ques-
tion had previously indicted the defend
ant for the same ofense and it had been
set aside for informality and resubmit-
ted to them, that therefore they must.
have been convinced of his guilt at the
time it was 30 resubmitted, and there
fore disqualified under sec S96 Penal
Code, which provides for right of chal-
lenge for actual bias. But it must be
remembered that this is the same case
first submitted to the grand jury, that
there is no pretense of any bias against
defendant when the grand jury was i'm
paneled, and it is plain that as general
rule challenges must be interposed at
the time of impaneling jury, and only
when defendant has not been held to
answer for the same offense can chal-
lenge be interpoHed afterwards; but the
challenge must be confined to the state
grand jury is impaneled. Were it
otherwise, it would result in an inquiry
into all testimony and proceedings COM
which would destroy the very object for
which a grand jury is limpaneled.
Besides, section 997 penal code,
in providing for cases where
indictments have been set aside use
this language, "unless it," meaning the
court, "directs that the case be re-
submitted to the same or another grand
jury" See People vs. Henderson, %
CAL, 465; People VS.. Turner, 80 CAL,
$40, and People vs.. Colmere, % CAL,
639, which, though not deciding the
question, still throw much light on the
point.
Third-That the grand jury was an
illegal body. Under this head counsel
has advanced several causes. The view
taken by the court renders it unneces-
sary to enter into detailed considera-
ton OF these.
None of the causes urged by counsel
under this head come within the letter
or spirit of the causes enumerated in
the code upon which q motion to set
aside may be predicated. The causes
upon which motion to set aside an in
dictment may be based are specifically
enumerated in section 995, penal code,
and for these and none other can such
motion be sustained. People VS.. South
we'll, 46 CAL, 141; People We. Schmidt,
"a CAL, 260; and many other cases to
the same effect are found in our reports.
Defendants contention that the court
had no right to order. the resubmission
OF the case to the grand jury for the rea-
son that the case was not dismissed at
the instance of defendant, but on mo-
ton of plaintiff, must be untenable.
Proceedings before grand juries were
never bar to another or second prose-
cution. They are purely ex parte, and
until trial begun before petit jury, no
jeopardy attaches. So that the motion
to set aside must be overruled, and it is
80 ordered.