Daily capital journal. (Salem, Or.) 1896-1899, 1898-10-19
FRANK NIGLOTl
LContInued from thIrd paRe.l

u Appellate court, q mere 100, Tor
that matter, that the officer did his
duty and put the James OF all the
jurors into the box. On the other
hand the state, having offered MOTH
ing out this presumption. which is
weaker than the positive test imony
of the officer which was Within reach
OF the state, IL Is presumed that the
testimony OF the officer would be
against the former presumption. l
take IL, therefore as established by
the showing here that these names OF
OF the twelve men engaged on the
jury 10 the civil case were not In the
box. Now the question is, what eff
feet has that.
THE constitution requires That
the legislative assembly shall so pro-
vide that the NEST competent OF the
permanent citizens OF the county
shall be chosen for jurors; and out Of
the whole number In attendance at
the court, seven shall be chosen by lot
as grand jurors, five OF whom must
concur to find an indictment. But
the legislative assembly may modify
OF abolish grand %juries.'
~ am Of the opinion that the case
OF the State VS.. Lawrence controls
10 this matter.
at is true IL says the legislative as
sembly may modify or abolish the
grand jury, but the argument IN this
case is that the legislature has power
to modify or abolish grand juries,
but the name Of drawing them is
beyond the authority of the leglsla-
tcre TO change, and that the drawing
must take place from the whole mum.
Der Of Jurors In attendance upon the
court. / think, therefore, that In
order TO have properly drawn the
extra grand juryman, all OF
the names should have been
10 the box | have examined the trans
criDt In the Lawrence case and find
that the question was there raised, on
a motion TO set aside the indictment.
The court In referring TO that says:
The next inquiry Is whether the
effect OF this is to entltle the defend.
ant 10 have the Indictment quashed,
and the Judgment OF conviction re.
yersed, and reaches this conclusion:
There are however, numerous author.
tiles to the effect that when a grand
jary Is not selected as required by law,
or a selection has been made OF such
persons as are not qualified TO act as
grand Jurors an indictment found by
them Is null and void, and should be
quashed, and the prisoner indicted de
noVO.' And then comes a Maine case:
These persons we're sworn ard charged
as grand Jurors, and added to the
panel, and acted,in finding the bill.
But as their selection for this purpose
was not 10 conformity to the laws OF
the state, they constituted no
part OF a legal grand Jury. Con-
sequently the indictment could not
have been found by at least twelve
jurors, and Is void and erroneous at
common law The supreme court OF
Oregon concluding the matter said.
Upon the whole 10 IL u Judgment
that the %accusatory paper was not an
Indictment; that IL proceeded from
and was the act OF a body Of men
selected as a grand jury Ia violation
Of the constitution. IL fellows. there
fore that the judgement OF conviction
mus be reversed, and the cause be
demanded for such further proceed
lngs In conformity with this opinion
and the law as may be required
"Of course, IL IS a matter OF regret
that such things happen in this way,
but II Is a constitutional right guaran-
teed TO the defendants and must be
observed, But the statute says that IF
the molten TO set aside the indictment
be allowed, the court must order that
the defendant II In custody, be dis
charged theretrOm; or II he have given
bail, or deposited money In lieu there
Of, that his bail be exonorated or hrs
money refunded 10 him, unless II di-
rect that the case be resubmittei to
the same or another grand jury.
"lt the court direct that the case be
resubmitted, the defendant, n then In
custody, must SC remain unless he be
admitted TO bail; or II he have already
given bail, or deposited money in.
lieu thereof, such bail or money is
answerable for the appearance OF the
defendant, 10 answer a new indict-
ment, II 4 be found.
"on the subject Of the demurrer.
the statute Is che same, and as the
demurrer Ia this case has been argued,
the court will without giving any
reason therefor sustain the demurrers,
pro forma only, for the purpose OF
clearing the record; and the order will
be that the indictment be set aside,
aud that the cause be resubmltted TO