The record-union., 1896-05-10
VERY IMPORTANT DECISION.
EOtion to Set Aside Indictments Against
Election Officers Granted.
Judge Hinkson Quotes Authorities at
Length and Resubmits the Mat
ter to the Next Grand Jury.

indicted by the Grand Jury Tor permit
ting fraudulent balloting at the cleo
tion last November. The decision was
on a motion to set aside the Indictment,
and is as follows:
In the Superior Court Of the County
Of Sacramento, State of California me
People of the State of California vs.
Frank Gregory, j. r. Browne, George
Anderson, George Wagner, George +.
Brady, George French, I. J. Simmons
and B. F. Taylor.
The defendants were jointly indicted
by the Grand Jury of the County OF
Sacramento for the crime OF violating
the provisions of Section % of the stat
ute known as the Purity of Election
Act" ct will be borne in mind that
this section is, verbatim, in the IAN
guage of Section Al of Title ". of the
Penal Code.) And they have moved to
set aside the indictment on the follow
ing grounds:
That the indictment was not found
nor indorsed nor presented as pre-
scribed by the Penal Code.
IL
That the Grand Jury which found and
presented the indictment was not a
legally constituted and organized
Grand Jury, because it was not drawn
and summoned for the year in which
the indictment was found.
Ill
That the defendants were indicted un-
der the provisions of Section Al of Title
". of the Penal Code, and the Grand
Jury. in considering the accusations
upon which the indictment was found,
cd he of witnesses
to testify before it, and they did testify
before it concerning the offenses which
were the subject matter of the lndlct-
ment, in violation Of Section IL. Article
/ of the Constitution of the State or
California. Also in violation of amend
ment five of the Constitution of the
United States, and also in violation or
the provisions of Section "a of the Penal
Code.
Counsel for defendants did not in
either their oral arguments or brlefs
insist upon the first point and did not
point out wherein they claimed that
the indictment was not found nor IN
dorsed nor presented as prescribed by
the Penal Code.
In finding, indorsing and presenting
the indictment / am unable to see that
the Grand Jury deviated from the rule
prescribed by the Penal Code, and in
This respect am fully satisfied that the
law was complied with.
Under the second point counsel for
defendant contends that as the law
(Section 204 c. c. p requires that IN
January of each year the superior
Court shall make an order designating
the estimated number of Grand Jurors
that Will, in the opinion of the court
be required for the transaction OF It's
business during the ensuing year, ana
shall Immediately thereafter select ana
list the names of persons from wnlch
the Grand Jurors to serve for the en-
suing year shall be drawn, and as the
Grand Jury which found and presented
this Indictment was drawn from the list
selected for the year 1899, and as IL
was impanelled in that year and found
and presented the Indictment In the
wear 1896, and after the court had, In
January, 1896, and before the finding
Of the Indictment selected and listed
the names of persons to serve as Grand
Jurors during the year 1896, and from
which the Grand Jurors for that year
should have been selected, this Grand
Jury was not a legally constituted
body. and that therefore the indictment
should be set aside
But the Supreme Court of this state
has settled this question. In the matter
Of James Cannon on Habeas Corpus, %
Cal. 546. where the court says: sec
tion 8. Article /, of the Constitution pro-
yides that a Grand Jury shall be drawn
and summoned at least once a year IN
each county And Section 24l, Code OF
Civil Procedure provides for the draw
ing and impaneling each year OF one
Grand Jury in each county having less
than three Superior Court Judges, and
of two Grand Juries in each county nav
ing more than three Superior court
Judges. But while the statutory law
fixes the time within the year for the
court to order the selection and return
of Grand Jurors liable to serve in the
capacity of Grand Jury, and limits the
time in which they shall serve Tor the
purpose Of the drawing and impanei-
ment of a Grand Jury, it prescribes no
specific time for the charging OF the
Grand Jury or for it's official existence
after II had been drawn and impaneled
These. the law seems to have left to the
judicial discretion of the court, for II
provides that every Superior Court
whenever, in the opinion of the court
the public interest must require 1t may
make an order directing a jury to be
drawn (Code Civil Pro, Sec. PAD; and
when the proceedings put in motion by
an order made for the purpose result in
the drawing and impanelment of
Grand Jury, it is. as an organized body,
in the exercise of it's functions and in
its official existence subject to the con-
troll of a court that is always open, and
may at any time in the exercise of its
jurisdiction order it to be discharged.
(Penal Code, Sec. 9O6)
A Grand Jury cannot dissolve itself
(Clem VS.. State. 33 Ind. 414); and as
the Grand Jury whose authority is chal-
lenged was not impaneled for any par
ticular time prescribed by law, and has
not been discharged by the court in
which il is acting, 1t still exists as an
original body with power to perform its
duties.
Besides. even If we were to assume
that for which counsel for the peti-
tioner contends. namely. that the time
for which the Grand Jury was drawn
ended with the year 1885. and that
new Grand Jury for 1886 ought to have
been drawn and the old jury discharged.
that, of itself, would not. in the absence
of proof that a new Grand Jury for 1886
was in fact drawn, dissolve the old, nor
affect its authority to perform the duties
of such body. AS an organized Grand
Jury it would be competent to act under
color of lawful authority. Having been
appointed TO office and having taken the
oath of office, the individual members
are officers of the court, not only de
jure but de facto. and their acts are
far ,ub