The record-union., 1897-02-09

by law. He cited the Bruner case to
show that a sufficient number of jurors
had been appointed, but sufficient were
not drawn to fill the panel, and Judge
Wallace appointed an elisor to COM
plete the list. The Supreme Court
stopped the proceeding by writ of
prohibition and declared the jury an
illegal Body, as the court had not COM
pleted it from the names still in the
box
In that proceeding eighteen names
We're drawn from the Grand Jury box
Eight of those whose names were thus
drawn We're excused for cause and the
other ten sworn in There still re-
manned upward of 100 names in the
box, but the court ignored these and
had Elisor Scott complete the panel by
selecting eight jurors from the outside.
1T was this proceeding that the Su-
preme Court so severely condemned.
Counsel held that legal indictment
is a prerequisite to a fair trial on a
felony charge, and the defense claimed
that the court is without jurisdiction
because men We're placed on the Grand
Jury who were not properly drawn to
serve thereon. The law requires that
after the requisite number be drawn
the Clerk must return to the box the
names of those excused from that par
ticular jury, to be used when the sue
ceeding jury is drawn.
1t doesn't matter, said Mr.. Seymour,
whether the failure to do this was an
omission by the Clerk or was by order
of the court-the effect is the same,
and it is not in compliance with the
laws requirements. If the names of
other persons had been drawn and
other men placed on the jury, these
indictments might not have been found,
as all presumptions must be in the de-
fendants favor. The court directed
that thirty names be drawn. These
We're put into the box and drawn out
| again-a sort of marching the soldiers
up the hill and then marching them
down again.
They moved to have the indictments
set aside on the further ground that
names of witnesses examined before the
jury We're not indorsed on the indict-
ments. W. E. Osborn was one of the
witnesses. but his name does not ap-
pear indorsed on the indictments.
THE PROSECUTION.
District Attorney Ryan responded to
Mr.. Seymour. In the first place, he
said, the statutes provide on what
grounds a Grand Jury may be chal-
lenged, and he read from Section S95
| of the Penal Code, which provides
First, that the requisite number of
ballots were not drawn; second, that
notice of the drawing was not given,
as prescribed by law; and third, that
the drawing was not had in the pres
ence of the officials prescribed by law
Mr. Ryan quoted from the decision
in the case of Southwell to show that the
court cannot set aside an Indictment on
any grounds other than those pre-
scribed in the section quoted.
He also quoted a decision in the peo-
pie against Colby, fifty fourth Califor-
MIA Reports, which was to the same ef-
feet that the Indictment could not be
set aside on the ground that the Grand
jury was not properly summoned, Sc
lected or impaneled. In the case of the
people against Hunter in the same re-
port, the same principle was laid down.
| Several Of the decisions were to the ef-
| feet that 1t did not matter how many
Grand Jurors were present at the time
an Indictment was found so long as
| the legal number necessary to find an
indictment was present and concurred
in it. Even in the case of Colby, when
several of the jury were successfully
| challenged on the ground that they
We're disqualified and the RENAL ining
thirteen concurred in the Indictment,
the indictment was sustained al
Tho11o-p h.a had Cy1araI civ pt tbar.
Grand Jurors drawn who were present
at the finding OF the Indictment.
SO in the people against Hidden,
where a number of persons drawn were
excused leaving only eighteen Grand
| Jurors.
| Mr.. Ryan called attention to the or
! der Of the court as shown in the min
utes for the drawing of the jury. in
| relation to the absence of H. G. Smith,
excusing him on account of sickness
and ordering that three persons be
! drawn, who had not served ON the
Grand Jury during the year, from which
| three one was drawn TO complete the
| jury by filing the position of Smith.
| In relation to the jurors excused, he
called attention TO the case of the peo-
pie against Leonard, in which. after
the nineteen Grand Jurors were drawn,
| two were excused on the ground that
| they were not on the assessment roll,
| and another one was ordered drawn by
| the court, filing the number. 1t was
afterward found that one of the men
| excused was assessed, and the legality
! Of the jury was attacked, but the court
| upheld the jury
! The court, Mr.. Ryan argued, had the
| right to excuse jurors where it seems
| best to it. He did not think there was
| any doubt of that fact. If there We're
| irregularities he thought they had not
| prejudiced the defendant, and also that
| the court had no power to review them.
MR.. JOHNSON'S ARGUMENT.
| H. w. Johnson, Of counsel for Lands
| borough, said the drawing of the
| Grand Jury was the essential point in
! the controversy. If it was irregularly
| drawn the court had no jurisdiction
! over its actions. He did not think
/ there was anything more than appar-
! ent contradiction between the two sec
/ tions of the law bearing on the draw
| ing.
The defendant had a right to have
| the jury drawn from the whole num-
/ Der Of those summoned, which was
| forty-one. and not thirty. Unless they
/ were so drawn they We're not competent
! ac+ the dIItv of the Conn ~