of the indictment, in repeated conversations, declared that the defendant was guilty of aiding in the carrying off of Morgan; that he was guilty of the crime, and ought to be punished therefor. The defendant did not know that any charge would be made against. him before the grand jury. The court, while admitting the force of the argument that the defendant should be allowed an exception to a partial grand juror, overruled the objection "from the consideration of the great delays and embarrassments which would attend the administration of criminal justice" if the course proposed was allowed.

In Munroe v. Brigham, 19 Pick. 368, also cited in the Reeves. Case, Chief Justice Shaw remarks:

"Upon general grounds, unless presumptively required by statute, it would be inconsistent with the purposes of justice to allow such an exception to a juror. Where no other incapacity exists, and no injustice is done, nothing but a positive rule of law would seem to require that a verdict should on that account be set aside."

The case of United States v. Benson and others (C. C.) 31 Fed. 896, involved questions identical with those in this case. The opinion of the court is by the late Justice Field, with whom were associated in the trial of the case Circuit Judge Sawyer and District Judge Hoffman. The defendants were indicted for an alleged conspiracy to defraud the United States. Each interposed a plea in abatement upon the ground that the names of some of the grand jurors who found the indictment were not on the assessment roll. The laws of California, where the case arose, prescribe among other qualifications for a juror that he shall be "assessed on the last assessment roll of his county on property belonging to him." The California Penal Code provides that challenges to an individual grand juror may be interposed for one or more of the certain enumerated causes only. The causes of challenge so enumerated do not include the objection that the juror was not assessed, etc. The California law further provides that an indictment may be set aside on motion when, among other things, "the defendant had not been held to answer before the finding of the indictment, on any ground which would have been a good ground for challenge either to the panel or to any individual grand juror." The court held that the provision disqualifying persons to serve on juries, whose names were not on the assessment roll, did not apply to grand jurors, because it was not included in the only grounds of challenge which the law permitted to be made to such jurors, and, unless it was a ground of challenge, it could not be a ground for setting aside an indictment under the section of the Penal Code relating to that subject.

The effect, then, of the statute prescribing the grounds upon which an indictment may be set aside, is to limit the disqualification of grand jurors to such grounds. Now, the Oregon statute does not permit pleas in abatement to indictments upon any ground. It provides for setting an indictment aside upon motion upon certain specified grounds, and the grounds so specified do not include any of those upon which the pleas in abatement are based

in this case. So, in the Benson Case, a positive disqualificatior of "jurors" imposed by statute was not available to a defendant in a proceeding like this, the statute not having made it a ground upon which to set aside the indictment, while in this case there is neither a positive disqualification by statute, nor a ground urged upon which the statute permits the indictment to be set aside In the Benson Case the court goes on to state a further fatal objection to the plea, as follows:

"In this case the objections to some of the grand jurors, that their names were not among the list of taxpayers on the last assessment roll of their respective counties, is technical only. There is no allegation in the plea that the jurors were not in all respects, as to ability and knowledge, fully qualified for the duties imposed upon them, or that the defendants were in any respect prejudiced by the absence of their names from the assessment roll. In these circumstances, the objection must fall under the general rule of the federal courts that omissions which do not impair any substantial right or prejudice the defense of the accused must be disregarded, unless otherwise required by positive statute. Section 1025, Rev. St. [U. S. Comp. St. 1901, p. 720], declares that 'no indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected, by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.'”

In this case, as in that, the particular objection, as well as the other objections urged, with the possible exception of that which relates to the citizenship of Guistin, are of the character mentioned in the above quotation; and, although the objections in question. are answered in this statement of the law, nevertheless I shall briefly consider them upon the facts stated.

It is alleged that the grand jury was not regularly organized or impaneled at the time the indictment was returned, but was an irregular "and void" grand jury, in this:

"That on the 18th day of October, 1904,, said grand jury was impaneled and organized, consisting of 21 persons including, among others, W. E. Robertson and Carl Phelps; and the said grand jurors were sworn, and said W. E. Robertson appointed foreman. That said Carl Phelps and W. E. Robertson were qualified and lawful jurors to sit as grand jurors in said court and had each and all of the qualifications required by law, and that said grand jury retired and commenced their investigation. That thereafter, and on the 19th day of October, 1904, said Robertson was excused for the term without cause. That nevertheless said grand jury continued to perform their duties and to investigate cases before them until the 25th day of October, 1904, when one George Peebler, who had never been a member thereof, was added to said grand jury by an order of this honorable court, and was impaneled and sworn as a grand juror, and took his seat with said grand jurors, and from that time, up to and including the finding of this indictment, acted with said jurors, and took part, as such pretended grand juror, in the finding of the indictment in this case. That thereafter the said pretended grand jury continued to transact business as such grand jury, and to investigate charges against divers and sundry persons, and, among the rest, as this defendant believes and alleges, partially investigated the charge against this defendant, upon which this indictment is brought, and heard testimony therein until about the 19th day of December, 1904, when one Fred G. Buffum, who was not one of the grand jurors originally impaneled, and who had not acted with said grand jury up to that time was, by order of this court, added to said pretended grand jury, and impaneled and sworn as une of said grand jurors, and that he continued to act with said grand jurors

as one of said grand jury up to the time that this indictment was returned into court, and took part in the investigation of this charge (which had then been partially investigated by the grand jury) from that time up to the finding of this indictment, and voted upon the finding thereof. That thereafter, and on the 27th day of January. 1905, and before this indictment was voted or returned into court, the aforesaid Carl Phelps was excused from such grand jury by order of this court, although he had been taking part in the investigation of this charge and had heard the testimony therein, and that he never thereafter acted as such grand juror-all to the substantial prejudice of this defendant."

Upon the argument the objection relating to the discharge of Robertson was waived by the attorneys for the defendant, and doubts were expressed by them as to the validity of the objection relating to the discharge of the juror Carl Phelps. The record shows that these jurors were discharged "for good cause shown to the court." Since there was necessarily an affirmative vote of 12 jurors to find a bill, the absence of these jurors could not have affected the result. It was suggested that they might, if present, have influenced a change in the affirmative vote by persuasion, but it goes without saying that there is no presumption against the indictment that these jurors would have endeavored to exert such influence, or would have succeeded in so doing; and, before the court can consider any objections made, it must at least appear, not from the belief expressed, but from the facts stated, that the defendant has suffered some impairment of a substantial right or some prejudice, or that the things complained of violate the requirements of a positive statute. Moreover, the power of the court to discharge a juror for good cause shown is undoubted, and the possible or probable effect of the absence of such a juror on the subsequent proceedings of the grand jury does not admit of inquiry. In the language of the court in United States v. Belvin (C. C.) 46 Fed. 383: "That the court may, in its discretion, excuse the foreman or any member of the grand jury from further service, without_invalidating the jury, is too obvious to need demonstration." The cases are so numerous and uniform in support of this authority that further citations are needless. "Whether," as stated in State v. Ward, 60 Vt. 142, 14 Atl. 187, this right "comes to us as a part of the common law," "need not be determined. It has been the recognized right of the court, as practiced, so far as revealed by the reported decisions, and so far as the memory of the oldest practitioners can inform us, for nearly a century.' And it is equally well established that the legality of the excuse for which a grand juror was discharged will be presumed, and, if the record recites that good cause was shown to the court, the presumption will be conclusive, as the record cannot be contradicted by oral testimony. Ter. v. Barth (Ariz.) 15 Pac. 673; Wallis v. State, 54 Ark. 611, 16 S. W. 821; Williams v. State, 69 Ga. 12; Burrell v. State, 129 Ind. 290, 28 N. E. 699; State v. Brown, 12 Minn. 538 (Gil. 448); Cotton v. State, 31 Miss. 504; Epperson v. State, 5 Lea (Tenn.) 293. The record of the court shows that the jurors Peebler and Buffum were summoned at the same time with the other jurors. It also contradicts the allegation of the plea that the grand jury had “par

tially investigated" the charges upon which this indictment was found before these jurors were sworn in. The record shows that on October 25, 1904, Peebler was sworn in; that the grand jury on that day reported to the court that it had "completed all business brought to its attention," and that it was therefore excused until such time as it should be reconvened by order of the court; that thereafter, and on December 19, 1904, the grand jury was reconvened; and that, so being, Buffum was duly sworn in, after which the grand jury retired. So that the grand jury, having on October 25th, after Peebler was sworn in, "completed all business brought to its attention," began on December 19th the consideration of matters not theretofore brought to its attention; Buffum being sworn, and retiring from the courtroom, with the other jurors, for that purpose. The indictment in question was returned on the 1st day of the following February. Phelps was excused on the 27th of January. With the exception of Phelps, the personnel of the grand jury was not changed during the period covered by its investigation of the charge in question, nor thereafter up to the time of its final discharge. These facts do not admit of contradiction. United States v. Terry (D. C.) 39 Fed. 358. They are shown by the record, and they are within the knowledge of the court.

A grand juror who reports after the jury have been sworn and charged may or may not be sworn, in the discretion of the court, when there are enough grand jurors without him. Findley v. People, 1 Mich. 234; People v. Lauder (Mich.) 46 N. W. 964. In the latter case the court says that it has been very usual, when delinquent jurors have come in on the same day after the jury have. been impaneled, sworn, and charged, to have them sworn and sent to their fellows. "If," says the court, "it may be done that day, then it may be done any time during the session of the grand jury. It is a matter entirely within the discretion of the court, and circumstances such as the absence of a part of those impaneled, from sickness or other cause, might make its exercise very proper."

The summons in this case was for 30 jurors, and it is suggested, rather than argued, that this fact may operate to invalidate the grand jury. Experience has shown that it is necessary, and it has therefore become the practice in this court, to issue the venire for a greater number than the maximum required, inasmuch as not all of those summoned will be found, and among those found some will be entitled to exemption, and others will be disqualified, through sickness or otherwise, for jury service. In the present case, of those summoned, 19, not including Robertson, who was exempt, reported for duty. This number was afterwards increased, by the presence of Peebler and Buffum, to 21. If the venire had been only for the maximum number required, it is doubtful if a quorum could have been had at the time appointed for the organization of the grand jury. The practice which has resulted in the particular complaint is founded in necessity, and I have no doubt of its legality and propriety. It is immaterial, and does not affect the legality of the grand jury, if more than 24 persons are summoned to appear as jurors. Stevenson v. State, 69 Ga. 68; Turner v. State, 78 Ga.

177; People v. Harriot, 3 Parker, Cr. R. 112; State v. Watson, 104 N. C. 735, 10 S. E. 705; Lowrance v. State, 4 Yerg. (Tenn.) 147.

The ground of the fourth plea is that Francis J. Heney is not a permanent resident of this district, but resides in the state of California, and that because of such nonresidence he could not lawfully act as district attorney. The principle is settled that there is a presumption from the undisturbed exercise of a public office that the appointment to it is valid. In the present case it is not questioned that the court had authority to make a valid appointment to this office, and that it did appoint Mr. Heney, and that during the performance by him, as district attorney, of all the acts and things complained of, he was in the undisturbed and unquestioned exercise of that office. His right to the office cannot be attacked collaterally. Whether he is in fact ineligible to hold the office is not material to the purposes of this inquiry. He is a de facto officer, and is entitled to continue in the office until it is judicially declared by a competent tribunal, in a proceeding for that purpose, that he has no right to it. 8 Ency. of Law, 788, citing a large number of cases. In the case of In re Manning, 139 U. S. 504, 11 Sup. Ct. 624, 35 L. Ed. 264, a conviction is upheld which was had in a trial before a de facto judge of a court de jure. The case was from Wisconsin, where the rule is recognized in a long series of decisions that "if the office has been lawfully established and a person exercises the functions thereof by color of right, but whose election or appointment thereto is illegal, his official acts therein cannot be successfully attacked in collateral proceedings, but in all such proceedings will be valid and binding until the officer is ousted by the judgment of a court in a direct proceeding to try his title to the office." The rule is required by public policy. As stated by Justice Story in the Bank of United States v. Danbridge, 12 Wheat. 64, 6 L. Ed. 552: For the purpose of "upholding transactions intimately connected with the public peace and the security of private property," the law indulges in its own presumptions; "thus it will presume that a man acting in a public office has been rightfully appointed; that entries made in public books have been made. by the proper officer," etc.

As to the other grounds of objection to the indictment-that Mr. Heney has been very prejudiced against the defendant, and very active in working up feeling against him, and has been very vindictive and bitter in his prosecution of this charge-these are matters of which this court cannot take cognizance. A prosecuting officer may not infrequently appear active against a defendant, and bitter and vindictive, in and out of court. The feelings and interests of a defendant tend to create in him an unfavorable opinion respecting the attitude of the prosecuting officer towards him. What is alleged is a mere matter of opinion, and as to the effect of the conduct attributed to the district attorney by that opinion, no opinion is expressed; and, if there was in fact evidence of the facts. to which the opinion relates, it could not affect the legality of what has been done, or afford ground for setting the indictment aside. The officer may, as alleged, have "greatly influenced the grand jury