Oct. 19, 1864, 43. Grand jury to inquire into crimes committed or triable within county. Id., § 44. May indict whether defendant has been held to § 1242. [43.] The grand jury has power, and it is their duty, to inquire into all crimes committed or triable in the county, and present them to the court, either by presentment or indictment, as provided in this chap ter. Presentment and indictment. The distinction between a present ment and an indictment is stated in Proffatt on Jury Trial, sec. 51, thus: "The original foundation of the institution of a grand jury contemplated it as an inquisitorial body, who would, of their own motion, by their own knowledge, bring offenders to trial whom no one dared publicly to accuse. They were therefore empowered to present accusations themselves against culprits known to them; and the same is still the case. When the grand jury acts in this manner, it is said to make a presentment; when it finds a case specially committed to it by a prosecution, it is said to find an indictment. However, in modern times, the former power of presenting an offender on their own knowledge is very much questioned, and in practice, at the present time, the grand jury merely act upon such matters as are officially laid before them by the public prosecutor." Mr. Bishop considers the distinction between a presentment and the American indictment as "very thin": 1 Bish. Crim. Proc., sec. 137. Presentment under this code defined post, 1265 [66]. Powers of grand jury. The grand jury should inquire into all offenses committed within the county and not barred by lapse of time: People v. Beatty, 14 Cal. 566. Grand jurors may act on their personal knowledge to find an indictment, without further testimony: 1 Bish. Crim. Proc., sec. 864; Regina v. Russell, 1 Car. & M. 247; Proffatt on Jury Trials, sec. 51. In most instances the prosecuting officer lays before the grand jury their business: Lewis v. Wake Co., 74 N. C. 194. In some of the states a mere pri vate person may present a case to them and ask an investigation: 1 Bish. Crim. Proc., sec. 863; but see McCullough v. Commonwealth, 67 Pa. St. 30. This is not universally so, and the better rule seems to be as laid down in Pennsylvania. "They can act only upon and present offenses of public notoriety, and such as are within their own knowledge, such as are given to them in charge by the court, and such as are sent up to them by the district attorney, and in no other cases can they indict without a previous prosecution before a magistrate": McCullough v. Commonwealth, 67 Id. 30, 33, per Agnew, J. If a witness swears falsely before them they may, of their own motion and knowledge, indiet him for the perjury: State v. Terry, 30 Mo. 368. A grand jury constitutes a part of the court by which it is convened, and is under its control: State v. Cowan, 1 Head, 280. It cannot dissolve itself: Clem v. State, 33 Ind. 418, 424. The court has power to recall a grand jury to pass upon offenses committed after they have been discharged, and before the adjournment of the term: Ante, § 1231 [32]; State v. Reid, 20 Iowa, 414. So if dismissed to a future day, on which they fail to reassemble, they may come together on a subsequent day and lawfully transact business: Clem v. State, 33 Ind. 418. So where the grand jury had come into court and had been discharged and had left the court, but had neither left the building nor separated, an order directing them to be sent back into court and to consider another bill of indictment is valid: Regina v. Holloway, 9 Car. & P. 43. An indictment may be legally found without the accused being present or notice being given to him: State v. Wolcott, 21 Conn. 272. jury may indict or present § 1243. [44.] The grand a person for a crime, when they believe him guilty thereof, whether such person has been held to answer for such answer or not. crime or not. § 45. When grand jury may present for opin § 1244. [45.] When the grand jury are in doubt Oct. 19, 1864, whether the facts, as shown by the evidence before them, constitute a crime in law, or whether the same has ceased to be punishable by reason of lapse of time or a former acquittal or conviction, they may make a presentment of the facts to the court, without mentioning the names of individuals, and ask the court to instruct them concerning the law arising thereon. ion of court. $ 46. Presentment, § 1245. [46.] A presentment cannot be found and Oct. 19, 1864, presented to the court except as provided in section 1244 [45], and when so found and presented, the court shall duty of court give such instructions to the grand jury concerning the thereto. law of the case as it may think proper and necessary. in relation administer witnesses. § 1246. [47.] The foreman of the grand jury may ad- Id., § 47. minister an oath to any witness appearing before them. Foreman may § 1247. [48.] In the investigation of a charge for the oaths to purpose of indictment, the grand jury shall receive no 1a., § 48. other evidence than such as might be given on the trial Grand jury to of the person charged with the crime in question. See the next section, and note thereto. hear legal evidence. $ 43. May order evidence to be § 1248. [49.] The grand jury is not bound to hear Oct. 19, 1864, evidence for the defendant, but it is their duty to weigh all the evidence submitted to them, and when they have explanatory reason to believe that other evidence within their reach produced. 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 wit nesses. What evidence grand jury should receive. The rule of the present day as to what evidence should be received by a grand jury in its deliberations is thus stated by Field, J.: "You will receive all the evidence presented which may throw light upon the matter under consideration, whether it tend to establish the innocence or the guilt of the accused; and more: if, in the course of your inquiries, you have reason to believe that there is other evidence, not presented to you, within your reach, which would qualify or explain away the charge under investigation, it would be your duty to order such evi- Oct. 19, 1864, Oct. 19, 1864, $50. Evidence, what will ment. Jury, 2 Saw. 667, 670. Defendant fore a magistrate upon a criminal charge, may be used before the grand jury: People v. Stuart, 4 Id. 218. § 1249. [50.] The grand jury ought to find an indictment when all the evidence before them, taken to warrant indict- gether, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury. Oct. 19, 1864, $51. Grand juror Evidence justifying indictment. A grand jury should not find an indictment when the evidence, taken together, if unexplained or un contradicted, would not warrant a conviction before a trial jury: People v. Tinder, 19 Cal. 543; S. C., 81 Am. Dec. 77. § 1250. [51.] If an individual grand juror know, or have reason to believe, that a crime has been committed, must disclose which is triable in the county, he must disclose the same of commission to his fellow-jurors, who must thereupon investigate the his knowledge of crime. Oct. 19, 1864, $52. Grand jury to inquire into conditions of prisons and offices. Oct. 19, 1864, $53. same. § 1251. [52.] In addition to the power and duty prescribed by section 1242 [43], the grand jury has power, and it is their duty, to inquire,— 1. Into the condition and management of every public prison in the county; and, 2. Into the condition and the management of the offices pertaining to the courts of justice in the county. § 1252. [53.] They shall be entitled to free access at all reasonable times to the prisons and offices mentioned in to prisons and section 1251 [52], and also to the examination, without charge, of all public records in the county. To have access records. Oct. 19, 1864, $54. District attor § 1253. [54.] The district attorney must submit an indictment to the grand jury, and cause the evidence in ney to present support thereof to be brought before them, in the case of when. every person held to answer a criminal charge in the court wherein such jury is formed. indictment, Id., $ 55. Oct. 19, 1864, $56. § 1254. [55.] The district attorney may submit an indictment to the grand jury, in any case, when he has good reason to believe that a crime has been committed. which is triable within the county. § 1255. [56.] The district attorney, when required by the grand jury, must prepare indictments or present $56. District attor attend sittings ments for them, and attend their sittings to advise them Oct. 19, 1864, in relation to their duties or to examine witnesses in their presence; but no person other than the district ney must attorney, or a witness actually under examination, can of grand jury. be allowed to be present during the sittings of the grand who may be jury, nor either such attorney or witness when the grand jury are deliberating or voting upon a matter before them. Who may be present at sitting of grand jury. - At the present day, the grand jury, although considered a part of the court, generally sits by itself while receiving testimony: State v. Branch, 68 N. C. 186; Grand Jury v. Public Press, 4 Brew. 313. The fact, however, that a third person is present, under no suspicious circumstances, though an irregularity, has been held not sufficient to vitiate an indictment found: State v. Kimball, 29 Iowa, 267; State v. Clough, 49 Me. 573; Little v. Commonwealth, 25 Gratt. 921, 931, 932; and certainly, after trial and verdict without any suggestion of unfairness to the prisoner, such an irregularity will not be sufficient ground for a reversal: State v. Justus, 11 Or. 178. Their deliberations, however, while voting on finding a bill should be pri- The presence of an attorney en- present. § 1256. [57.] An indictment or presentment must 1a., $57. not be found upon the statement of a grand juror, unless he be sworn and examined as a witness. Indictment not to be found on statement of juror, unless juror bound to mony of § 1257. [58.] A member of a grand jury may be sworn. required by any court to disclose the testimony of a wit- Id., §58. ness examined before such grand jury, for the purpose When grand of ascertaining whether it is consistent with that given disclose testiby the witness before the court, or to disclose the testi- witness. mony given before such grand jury by any person, upon 15 Or. 274. a charge against such person for perjury, or upon his trial therefor. Secrecy of proceedings. By the oath provided for in § 1236 [37], ante, a grand juror is required to preserve with secrecy the proceedings of the jury; but the above section prescribes an exception to the rule. The obligation of secrecy is imposed on grand jurors for the public benefit, and not for the benefit of persons that Oct. 19, 1864, 58. Oct. 19, 1864, $59. Immunity of grand juror. one is that of public policy. So, in 741; State v. Broughton, 7 Ired. 96; S. C., 45 Am. Dec. 507; State v. Brewer, 8 Mo. 373. The testimony may come from a grand juror himself: State v. Wood, 53 Ñ. H. 484; United States v. Charles, 2 Crauch C. C. 76; Crocker v. State, Meigs, 127; Commonwealth v. Hill, 11 Cush. 137; or from a third person present: Regina v. Hughes, 1 Car. & K. 519; Little v. Commonwealth, 25 Gratt. 921, 931. So a person who was a witness before the grand jury may be questioned as to what was his own evidence: Regina v. Gibson, Car. & M. 672. That a grand juror cannot be compelled to disclose how he voted, see Ex parte Sontag, 64 Cal. 525. § 1258. [59.] A grand juror cannot be questioned for anything he may say or any vote he may give, while acting as such, in relation to any matter legally pending be questioned. before the grand jury, except for a perjury, of which he may have been guilty in giving testimony before such jury. Grand jurors are not liable for damages in a civil action for anything done by them in the jury-room, even though actuated by malice: Turpen v. Booth, 56 Cal. 65; Hunter v. Mathis, 40 Ind. 356. Oct. 19, 1864, $60. Indictment CHAPTER VII. OF THE FINDING AND PRESENTATION OF THE INDICTMENT. § 1259. Indictment must be found by five jurors and indorsed by foreman. § 1261. Indictment, how presented; a public record, and when not subject to public inspection. § 1262. Grand juror or officer not to disclose indictment when not subject to public inspection. § 1263 Proceeding when indictment not found “a true bill.” § 1264. Indictment, effect of when returned "not a true bill." § 1265. Presentment, definition of, and how made. § 1259. [60.] An indictment cannot be found without the concurrence of at least five grand jurors; and by five jurors when so found it must be indorsed "a true bill," and such indorsement signed by the foreman of the jury. must be found and indorsed by foreman. |