TITLE IV. OF PROCEEDINGS AFTER COMMITMENT, AND BEFORE INDICTMENT. CHAPTER I. Preliminary provisions. II. Formation of the grand jury; its powers and duties. CHAPTER I. PRELIMINARY PROVISIONS. SECTION 222. Crimes; how prosecuted. § 222. Crimes; how prosecuted. All crimes prosecuted in a court of oyer and terminer, or in a court of sessions, or in a city court, must be prosecuted by indictment. New. (N. Y. Const., art. I, § 6; U. S. Const., art. V; 1 R. S., 376, § 12.) CHAPTER II. FORMATION OF THE GRAND JURY, ITS POWERS AND DUTIES. SECTION 223, 224. Grand jury defined. 225, 226, 227. For what courts to be drawn; the order. 228. Misdescription. 229. Mode of selecting grand jurors. 230. If sixteen grand jurors do not appear, additional number to be ordered. 231, 232, 233. Manner of designating the additional grand jurors. 234. Summoning the additional grand jurors, and compelling their attendance. 235. When new grand jury may be summoned for the same court. 236. Grand jury, how drawn when more than a sufficient number attends. 237. Who may challenge an individual grand juror. 238. Causes of discharge of the panel. 239. Causes of challenge to an individual grand jurer. 240. Manner of taking and trying the challenges. 241. Decision upon the challenge. 242. Effect of allowing a challenge to an individual grand juror. 243. Violation of last section 244. Appointment of foreman. 245, 246, 247. Oath of the foreman and the other grand jurors. SECTION 249. Retirement of the grand jury. 250. Appointment of a clerk, and his duties. 251. Discharge of the grand jury. 252. Power of grand jury to inquire into crimes, etc. 253. Foreman may administer oaths. 254. Definition of indictment. 255. Evidence receivable before the grand jury. 256. Same. 257. Grand jury not bound to hear evidence for the defendant, but may order explanatory evidence to be produced. 238. Degree of evidence to warrant an indictment. 259. Grand jurors must declare their knowledge as to commission of a crime. 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. 261. Grand jury entitled to access to public prisons, and to examine public records. 262, 263, 264. When and from whom they may ask advice, and who may be present during their sessions. 265. Secrets of the grand jury to be kept. 266. Grand jury; when bound to disclose the testimony of a witness. 267. Grand juror not to be questioned for his conduct as such. § 223. Grand jury defined. A grand jury is a body of men, returned at stated periods from the citizens of the county, before a court of competent jurisdiction, and chosen by lot, and sworn to inquire of crimes committed or triable in the county. 3 R. S., 1018, § 26; 1 R. S., 376, § 12. A grand jury has full power to make inquiry and present, by indictment, all persons charged with crime. (People v. Hyler, 1 Park., 566; French v. People, 3 id., 114; People v. Paige, Id., 600; People v. Horton, 4 id., 222; People v. Hefferman, 5 id., 393.) How selected at common law. (2 Hawk., P. C., ch. 25, § 16; 1 Bish. Crim. Proc., § 849.) § 224. Grand jury defined. —The grand jury must consist of not less than sixteen and not more than twenty-three persons, and the presence of at least sixteen is necessary for the transaction of any business. 3 R. S., 1018, § 26. (a) Number at common law. - A common-law grand jury must contain not over twenty-three nor under twelve. (1 Bish. Crim. Proc., § 854; 1 Chitt. Cr. L., 311; Rex v. Marsh, 1 Nev. & P., 187; Harding v. State, 22 Ark., 210; People v. Gatewood, 20 Cal., 146; Keech v. State, 15 Fla., 591; Barron v. Peo ple, 73 Ill., 250; Leathers v State, 26 Miss., 73.) (b) Error to swear twenty-four. It is error to swear twenty-four persons as a grand jury. (People v. King, 2 Caines, 98.) (c) Objection must be taken in court below. However a conviction will not be reversed because the indictment purports to have been found by twenty-four grand jurors, if the objections were not taken in court below. (Conkey v. Purple, 1 Abb. Dec., 418; 5 Park., 31.) (d) Twelve must concur.-In England and all our states twelve of the grand jurors must consent in order to render the finding valid. (2 Hawk. P. C., ch. 25, § 16; State v. Miller, 3 Ala., 343; Hudson v. State, 1 Blackf. 317; State v. Davis, 2 Ire., 153; Com. v. Sayers, 8 Leigh, 722; Low's case, 4 Greenf., 439; State v. Clayton, 11 Rich., 581; State v. Symonds, 36 Me., 128.) (e) May move to quash on ground of less than twelve.- The prisoner, on his arraignment, may move to quash the indictment on the ground that twelve grand jurors did not concur. (People v. Shattuck, 6 Abb. [N. C.], 33.) $ 225. (Amended 1882.) For what courts to be drawn; the order. A grand jury must be drawn for every term of the following courts: 1. The court of oyer and terminer, except in the city and county of New York, and the county of Kings, and except for extraordinary or adjourned terms; 2. The court of general sessions of the city and county of New York and the court of sessions of the county of Kings; and 3. The city courts whenever an indictment can be there found. New in form. (See 3 R. S., 1016, §§ 10, 11.) $226. (Amended 1882.) For what courts to be drawn; the order. A grand jury may also be drawn: 1. For every other court of sessions, when specially ordered by the court or by the board of supervisors; 2. For the court of oyer and terminer in the city and county of New York, upon the order of a judge of the supreme court, elected in the first judicial district; 3. For the court of oyer and terminer of the county of Kings, upon the order of a judge of the supreme court elected in the second judicial district. New in form. (See Id.) $227. For what courts to be drawn; the order. - If made by the court or a judge thereof, the order for a grand jury must be entered upon its minutes, and a copy thereof filed with the county clerk. at least twenty days before the term for which the jury is ordered. If made by the board of supervisors a copy thereof, certified by the clerk of the board, must be filed with the county clerk, at least twenty days before the term; and when so filed, is conclusive evidence of the authority for drawing the jury. New in form. (See Id.) § 228. Misdescription in order. - A misdescription of the title of the court in an order for a grand jury does not affect the validity of the order, if it can be plainly understood therefrom what court is intended. § 229. Mode of selecting grand jurors. —The mode of selecting grand jurors is prescribed by special statutes. New. (See Code Civil Proc., §§ 2293-2301, 3314, 3351.) (a) Color of lawful authority enough. It is sufficient to the validity of an indictment that the grand jury acted under color of lawful authority. The prisoner cannot plead that it was irregularly organized. (People v. Dolan, 6 Hun, 232; Id., 493; 64 N. Y., 485.) (b) What sufficient, warrant or venire. — A general warrant or venire under the seal of the court to the sheriff, to summon grand and petit jurors for the trial of all the causes which are to be tried before the court of general sessions, is sufficient. And there need not be a venire in each particular case. (People v. Gen. Sess. of Herkimer, 20 Johns., 310.) (c) Precept not necessary. It seems, however, that the issuing of precept is not necessary to give validity to the acts of the grand jury, it having been regularly drawn and summoned. (People v. Robinson, 2 Park., 235; People v. Cummings, 3 id., 343; McCann v. People, Id., 272; contra, McGuire v. People, 2 Park., 148.) (d) Objections to grand jury, when taken. - Objection to organization of grand jury is too late after issue joined, and case on part of people has been gone through with. (People v. Griffin, 2 Barb., 427.) (e) What irregularity ground for quashing. It is no ground for quashing an indictment, that the list from which the grand jury was drawn, contained one less than the number required by statute. (People v. Harriatt, 3 Park., 112.) -- § 230. If sixteen grand jurors do not appear, additional number to be ordered. If at any court of oyer and terminer or court of sessions, except in the counties of Genesee, Orleans, and St. Lawrence, there shall not appear at least sixteen persons, duly qualified to serve as grand jurors, who have been summoned, or if the number of grand jurors attending shall be reduced below sixteen, such court must, by order to be entered in its minutes, require the clerk of the county to draw, and the sheriff to summon, such additional number of grand jurors as shall be necessary, and must specify the number required in the order. 3 R. S., 1018, § 23. § 231. Manner of designating the additional grand jurors. The clerk of the county must forthwith bring into the court the box containing the names of the grand jurors, from which grand jurors in the county are required to be drawn; and he must, in the presence of the court, proceed publicly to draw the number of grand jurors specified in the order; and when such drawing is completed, he must make two lists of the persons so drawn, each of which must be certified by him to be a correct list of the names of the persons so drawn by him, one of which he must file in his office, and the other he must deliver to the sheriff. Id. § 232. Manner of designating the additional grand jurors. The sheriff must accordingly, ir. the manner required in respect to the grand jurors originally drawn, forthwith summon the persons whose names are drawn or designated in the list, provided in section two hundred and thirty-one, to appear in the court requiring their attendance at the time designated, and they must attend and serve as if they had been originally summoned as grand jurors, and subject to the same penalties, unless excused or discharged by the court. Id., § 24. § 233. (Amended 1882.) Manner of designating the additional grand jurors.- In the counties of Genesee, Orleans and St. Lawrence, the names of the persons required to complete the grand jury may, in the discretion of the court, be drawn as provided in the last section, or may be publicly designated by the court, from the bystanders or the body of the county. Id., § 23. § 234. Summoning the additional grand jurors, and compelling their attendance. The sheriff must accordingly, in the manner required in respect to the grand jurors originally drawn, forthwith summon the persons whose names are drawn or designated, as provided in the last two sections, who must attend and serve as if they had been originally summoned as grand jurors, and are subject to the same penalties, unless excused or discharged by the court. Id., § 24. § 235. When new grand jury may be summoned for the same court. If a crime be committed during the sitting of |