Sidebilder
PDF
ePub

Presentment.-A presentment found not on the knowledge of any of the grand jury, but upon information delivered by others to them, should be abated on plea of defendant-State v. Love, 4 Humph. 255; see also 1 Hawks, 352.

917. An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense.

The charge mentioned in this section is not the same as the charge mentioned in § 858-44 Cal. 557.

918. The foreman may administer an oath to any witness appearing before the grand jury.

Perjury may be committed in proceedings before the grand jury-31 Cal. 563; 24 Ark. 591; 4 Blackf. 355; 2 Cush. 212; 8 Watts, 56; 2 Rob. (Va.) 795; 16 Conn. 457; 3 Watts, 56; 1'Car. & K. 519. See 2 Parker Cr. R. 570. The witness to be sworn, so that if his evidence is false he may be prosecuted for perjury-16 Conn. 457; 2 Parker Cr. R. 570. The foreman may administer the oath-50 Ga. 585; 77 id. 484. See 56 Pa. St. 169. Contra, 5 Cold. 26.

919. In the investigation of a charge for the purpose of either presentment or indictment, the grand jury can receive no other evidence than such as is given by witnesses produced and sworn before them, or furnished by legal documentary evidence, or the deposition of a witness in the cases mentioned in the third subdivision of section six hundred and eighty-six. The grand jury can receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence.

Depositions taken before a magistrate upon examination of accused may be used before the grand jury-4 Cal. 218. Defendant may testify before the grand jury-28 Cal. 265. No evidence taken before the grand jury can be used to invalidate the indictment-16 Conn. 457; 30 Tex. 428.

920. The grand jury is not bound to hear evidence for the defendant; but it is their duty to weigh all the evidence submitted to them, and when they have reason to believe that other evidence within their reach will explain away the charge, they should order such evidence to be produced, and for that purpose may require the district attorney to issue process for the witnesses.

921. The grand jury ought to find an indictment when all the evidence before them, taken together, if unex

plained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury.

Evidence to warrant conviction.-If all the evidence before them would not warrant a conviction, they ought not to find an indictment19 Cal. 539. The grand jury are not to determine the degree of the offense-34 Cal. 211.

922. If a member of a grand jury knows, or has reason to believe, that a public offense, triable within the county, has been committed, he must declare the same to his fellow-jurors, who must thereupon investigate the same.

923. The grand jury must inquire into the case of every person imprisoned in the jail of the county on a criminal charge and not indicted; into the condition and management of the public prisons within the county; and into the willful and corrupt misconduct in office of public officers of every description within the county.

Duty to inquire into cases of prisoners-49 Cal. 651.

924. They are also entitled to free access, at all reasonable times, to the public prisons, and to the examination, without charge, of all public records within the county.

925. The grand jury may, at all reasonable times, ask the advice of the court, or the judge thereof, or of the district attorney; but unless such advice is asked, the judge of the court must not be present during the sessions of the grand jury. The district attorney of the county may at all times appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable by them, and may interrogate witnesses before them whenever they or he thinks it necessary; but no other person is permitted to be present during the sessions of the grand jury except the members and witnesses actually under examination, and no person must be permitted to be present during the expression of their opinions or giving their votes upon any matter before them. Advice of district attorney-1 Conn. 428; 7 Cowen, 563.

Persons excluded.-No persons are permitted to be present but the members, and witnesses actually under examination-67 Pa. St. 30: 6 Phila. 167. Any volunteer attendance or communication is a contempt

of court-67 Pa. St. 30; 3 Pa. L. J. 443; 2 Sawy. 663; but the prisoner is entitled to be present, and ask questions of witnesses- Conn. 428; 16 id. 458.

926. Every member of the grand jury must keep secret whatever he himself or any other grand juror may have said, or in what manner he or any other grand juror may have voted on a matter before them; but may, however, be required by any court to disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before them by any person, upon a charge against such person for perjury in giving his testimony, or upon trial therefor.

Obligation of secrecy.-Witnesses cannot take advantage of this obligation in aciminal prosecution against them-31 Cal. 564; 7 Ired. 101. They are not permitted to disclose the evidence taken before the grand jury-43 Me. 11; see 4 Gray, 535. A grand juror may be compelled to testify, when necessary for public justice, as to what a witness testified to-53 N. H. 484; S. C. 2 Green C. R. 346. They are competent witnesses to prove perjury committed before them-31 Cal. 564; 11 Cush. 137; 1 Car. & K. 519; 2 Cranch C. C. 76; 64 Me. 267; 12 Gray, 167; 106 Mass. 75; 16 Conn. 457; 4 Denio, 133; 3 Watts, 56; 2 Rob. (Va.) 795; 25 Gratt. 921; 5 Blackf. 21; 4 Ind. 222; 43 id. 384; 7 Ired. 96; 2 Hill, (S. C.) 288; 20 Miss. 704; 37 id. 357; 27 Mo. 261; 1 Bibb, 369; 1 Meigs, 127; 6 Heisk. 181; contra, 2 Halst. 347; but they cannot impeach their own verdict by affidavit-Charlt. R. M. 1; 1 Hawks, 344; 20 Mo. 338; 17 Minn. 241; 41 Iowa, 311; 39 id. 318; nor disclose the vote on finding of the indictment-16 Conn. 457; 4 Denio, 133; 20 Mo. 238; 46 Iowa, 88; 39 id. 318; contra. 6 Abb. N. C. 33; ́see 30 Tex. 428. So, the district attorney is a competent witness to prove perjury of a witness before the grand jury -59 Ind. 384; see 1 Bibb, 369; but he is incompetent to testify to a fact which will impeach the verdict-13 Me. 82; 12 Vt. 485; 1 Law Reporter, 4.

927. A grand juror cannot be questioned for anything he may say, or any vote he may give in the grand jury, relative to a matter legally pending before the jury, except for a perjury of which he may have been guilty, in making an accusation or giving testimony to his fellowjurors.

928. It shall be the duty of the grand jury annually to make a careful and complete examination of the books, records, and accounts of all the officers of the county, and especially those pertaining to the revenue, and report thereon; and if, in their judgment, the services of an expert

are necessary, they shall have power to employ one at an agreed compensation not to exceed five dollars per day, payable as other county charges. The judge, upon the impannelment of such grand jury, shall charge them especially as to their duties under this section. [In effect April 16th, 1880.]

PEN. CODE-80.

CHAPTER IV.

PRESENTMENT, AND PROCEEDINGS THEREON.

§ 931. Presentment must be by twelve grand jurors, etc.

§ 932. Must be presented to the court and filed.

§ 933. Court must direct a bench-warrant if facts constitute a public offense.

$ 934. Bench-warrant, by whom and how issued.

§ 935. Form of bench-warrant.

§ 936. Bench-warrant, how served.

§ 937. Proceedings of magistrate on defendant being brought before him.

931. A presentment cannot be found without the concurrence of at least twelve grand jurors. When so found, it must be signed by the foreman.

See 54 Cal. 103; post, § 940, and note.

932. The presentment, when found, must be presented by the foreman, in presence of the grand jury, to the court, and must be filed with the clerk.

933. If the facts stated in the presentment constitute a public offense, triable in the county, the court must direct the clerk to issue a bench-warrant for the arrest of the defendant.

934. The clerk, on the application of the judge or district attorney, may accordingly, at any time after the order, whether the court be sitting or not, issue a benchwarrant, under his signature and the seal of the court, into one or more counties.

935. The bench-warrant, upon presentment, must be substantially in the following form: County of The People of the State of California to any sheriff, constable, marshal, or policeman in this State: A presentment having been made on the

day of

eight

« ForrigeFortsett »