§ 251. Discharge of the grand jury.— The grand jury, on the completion of the business before them, must be discharged by the court; but whether the business be completed or not, they are discharged by the final adjournment of the court. New. 252. Power of grand jury to inquire into crimes, etc. The grand jury has power, and it is their duty, to inquire into all crimes committed or triable in the county, and to present them to the court. New. A grand jury has full power to make inquiry and to present, by indictment, all persons charged with crime. (People v. Huyler, 2 Park., 566; French v. People, 3 id., 114; People v. Page, Id., 600; People v. Horton, 4 id., 222; People v. Hefferman, 5 id., 393.) $253. Foreman may administer oaths. The foreman may administer an oath to any witness appearing before the grand jury. 3 R. S., 1019, § 29; 1 R. L., 525, § 27. In other states. The foreman must administer the oath to witnesses. (50 Ga., 585; 77 id., 484; 16 Conn., 457.) § 254. Definition of an indictment.-An indictment is an accusation in writing, presented by a grand jury to a competent court, charging a person with a crime. New. (1 Bish. Crim. Proc., § 131; 4 Black. Com., 299; 1 Chitty Cr. L., 168; Coke Litt., 126.) 255. Evidence receivable before the grand jury.— In the investigation of a charge, for the purpose of indictment, the grand jury can receive no other evidence than : 1. Such as is given by witnesses produced and sworn before them, or furnished by legal documentary evidence; or 2. The deposition of a witness, in the cases mentioned in the third subdivision of section eight. New. (1 Bish. Crim. Proc., § 865; U. S. v. Coolidge, 2 Gales., 364; State v. Barnes, 7 Jones' N. C., 20; U. S. v. Reed, 2 Blatch., 435.) 256. Evidence receivable before the grand jury. The grand jury can receive none but legal evidence. New. (1 Bish. Crim. Proc., § 865; State v. Froiseth, 16 Minn., 296; Sparrenberger v. State, 53 Ala., 481; State v. Walcott, 21 Conn., 272; Duke v. State, 20 Ohio St., 220.) $257. Grand jury not bound to hear evidence for the defendant, but may order explanatory evidence to be produced. The grand jury is not bound to hear evidence submitted 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. 3 R. S., 1019, § 32; as to last clause, see 1 Bish. Crim. Proc.. § 867. --- 258. Degree of evidence, to warrant an indictment. — The grand jury ought to find an indictment, when all the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury. New. - (a) What evidence necessary. The testimony given before the grand jury, which is always ex parte, should be sufficient in degree to convict if unexplained. Upon less than this a bill should not be found. (People v. Baker, 10 How., 567; People v. Hyler, 2 Park., 570.) § 259. Grand jurors must declare their knowledge as to commission of a crime. — If a member of the grand jury know, or have reason to believe, that a crime has been committed, which is triable in the county, he must declare the same to his fellow jurors, who must thereupon investigate the same. New. (a) May indict on their own knowledge.-They may act on present offenses of public notoriety, and also such as are within their own knowledge. (67 Penn. St., 30; 76 id., 319.) A grand jury may, of their own knowledge, indict a person committing perjury before them. (30 Mo., 368; Reg. v. Russell, Carr & M., 247; State v. Hatfield, 3 Head, 231; 1 Bish. Crim. Proc., § 866.) § 260. Grand jury must inquire as to persons imprisoned on criminal charges and not indicted; the condition of public prisons, and the misconduct of public officers.— The grand jury must inquire: 1. Into the case of every person imprisoned in the jail of the county, on a criminal charge, and not indicted; 2. Into the condition and management of the public prisons in the county; and 3. Into the willful and corrupt misconduct in office of public officers of every description in the county. New. § 261. Grand jury entitled to access to public prisons, and to examine public records. 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 in the county. New. § 262. When and from whom they may ask advice, and who may be present during their sessions. The grand jury may, in any case, ask the advice of any judge of the court, or of the district attorney of the county. 3 R. S., 1019, 32. It is the duty of the district attorney to attend the grand jury and advise them. (Anon., 7 Cow., 563; 1 Conn., 428.) $263. When and from whom they may ask advice, and who may be present during their sessions. Whenever required by the grand jury, it shall be the duty of the district attorney of the county to attend them for the purpose of examining witnesses in their presence, or of giving them advice upon any legal matter, and of issuing subpoenas or other process for witnesses. Id., 32; contra, Anon., 7 Cow., 563. Where an indictment is found without a preliminary examination, the district attorney may be compelled to furnish the accused with a list of the witnesses who testified before the grand jury, and to allow prisoner's counsel to examine the minutes taken before grand jury. (People v. Naughton, 38 How., 430.) § 264. When and from whom they may ask advice, and who may be present during their sessions. The district attorney of the county must be allowed, at all times, to appear before the grand jury, at his request, for the purpose of giving information relative to any matter before them, but no district attorney, officer or other person, shall be present with the grand jury during the expression of their opinions, or the giving of their votes upon any matter. In other states. — No persons allowed to be present except the members and witnesses actually under examination. (67 Penn. St., 30; 6 Phila., 167.) But the prisoner is entitled to be present and ask questions. (1 Conn., 428, 16 id., 458.) § 265. Secrets of the grand jury to be kept.-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. Id. $31. (People v. Tinder, 19 Cal., 539; 1 Bish. Crim. Proc., § 857.) In other states. Witnesses cannot take advantage of this obligation in a criminal prosecution against them. (31 Cal., 564; 7 Ire., 101.) They are not permitted to disclose the evidence taken before the grand jury. (43 Me., 11; 4 Gray, 535.) Nor disclose the vote on finding the indictment. 467; 20 Mo., 238; 46 Iowa, 88; 39 id., 318.) Grand jurors being sworn to secrecy cannot generally be disclosed. (People v. Hulbut, 4 Den., 133.) (16 Conn., A grand juror may, however, be asked who was the prosecutor of a particular indictment. (People v. Hulbut, 4 Den., 133.) § 266. Grand jury, when bound to disclose the testimony of a witness. - A member of the grand jury 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 him for perjury in giving his testimony, or upon his trial therefor. Id., § 31. A grand juror may be examined on a prosecution for perjury to show that a witness has contradicted on a trial what he testified to before the grand jury. (People v. Hulbut, 4 Den., 133.) He may also be asked who was the prosecutor of a particular indictment. (Id.) But a grand juror cannot be called to impeach the conduct of the jury as to show that an indictment was found on insufficient testimony. (Id.) Upon the hearing of a motion to quash an indictment on the ground that twelve of the jurors did not concur, grand jurors may be asked as to whether or not twelve did concur. (People v. Shattuck, 6 Abb. N. C., 33.) In other states. A grand juror may be compelled to testify as to what a witness testified to, when necessary for the ends of justice. (53 N. H., 484; 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., 467; 3 Watts, 56; 25 Gratt., 921; 5 Blackf., 21; 4 Ind., 422; 43 id., 284; 7 Ire., 96; 2 Hill [S. C.], 288; 20 Miss., 704.) They cannot impeach their own verdict by affidavit. (1 Hawk., 344; 20 Mo., 338; 17 Minn., 241; 41 Iowa, 311.) Nor disclose the vote on finding the indictment. (16 Conn., 457; 20 Mo., 238; 46 Iowa, 88; 39 id., 318.) So also is the district attorney a competent witness to prove the perjury of a witness before the grand jury. (59 Ind., 384.) But he cannot testify to a fact that will tend to impeach the verdict. (13 Me., 82; 12 Vt., 485.) § 267. Grand juror not to be questioned for his conduct as such. — 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 fellow jurors. New. (a) A charge against juror is a contempt. To assert that the grand jury or one of its members whilst sitting, are incompetent to the discharge of their duty, is a contempt. (Ex parte Van Hook, 3 C. H. Rec., 64.) The publication of defamatory matter concerning a grand juror, not impeaching his conduct or capacity as such, does not amount to a contempt. (Ex parte Spooner, 5 C. H. Rec., 109.) TITLE V. OF THE INDICTMENT. CHAPTER I. Finding and presentation of the indictment. II. Form of the indictment. III. Amendment of the indictment. V. Setting aside the indictment. VI. Demurrer. VII. Plea. VIII. Removal of the action before trial. CHAPTER I. FINDING AND PRESENTATION OF THE INDICTMENT. SECTION 268. Indictment must be found by twelve grand jurors, and indorsed by foreman. 269. If not so found, depositions, etc., must be returned to the court, with dismissal indorsed. 270. Effect of dismissal. 271. Names of witnesses must be indorsed upon indictment. 272. Indictment must be presented in presence of the grand jury, and filed. $268. Indictment must be found by twelve grand jurors and indorsed by foreman.- An indictment cannot be found. without the concurrence of at least twelve grand jurors. When |