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This section applies only to cases where the defendant is held to answer before the impaneling of the jury: People v. Beatty, 14 Cal. 571.

902. Appointment of a foreman.

SEC. 902. From the persons summoned to serve as grand jurors and appearing, the court must appoint a foreman. The court must also appoint a foreman when the person already appointed is excused or discharged before the grand jury is dismissed.

Order appointing foreman.-Order appointing need not be entered in the minutes if the

903. Oath of foreman.

indictment is indorsed by the foreman and returned to the court: People v. Roberts, 6 Cal. 214,

SEC. 903. The following oath must be administered to the foreman of the grand jury: "You, as foreman of the grand jury, will diligently inquire into, and true presentment make, of all public offenses against the people of this state, committed or triable within this county, of which you shall have or can obtain legal evidence. You will keep your own counsel and that of your fellows and of the government, and will not, except when required in the due course of judicial proceedings, disclose the testimony of any witness examined before you, nor anything which you or any other grand juror may have said, nor the manner in which you or any other grand juror may have voted on any matter before you. You will present no person through malice, hatred, or ill-will, nor leave any unpresented through fear, favor, or affection, or for any reward, or the promise or hope thereof; but in all your presentments you will present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding, so help you God." [Amendment, approved March 30, 1874; Amendments 1873-4, 437; took effect July 1, 1874.]

How juror voted he cannot be compelled to disclose: Ex parte Sontag, 1 West Coast Rep. 588; S. C., 64 Cal. 525.

904. Oath of other grand jurors.

SEC. 904. The following oath must be immediately thereupon administered to the other grand jurors present: "The same oath which your foreman has now taken before you on his part, you and each of you shall well and truly observe on your part, so help you God."

905. Charge of the court.

SEC. 905. The grand jury, being impaneled and sworn, must be charged by the court. In doing so, the court must give them such information as it may deem proper, or as is required by law, as to their duties, and as to any charges for public offenses returned to the court or likely to come before the grand jury. 906. Retirement of the grand jury-Discharge of.

SEC. 906. The grand jury must then retire to a private room and inquire into the offenses cognizable by them. On the completion of the business before them, they must be discharged by the court; but whether the business is completed or not, they are discharged by the final adjournment of the court.

907. Special grand jury.

SEC. 907. If an offense is committed during the sitting of the court, after the discharge of the grand jury, the court may, in its discretion, direct an order to be entered that the sheriff summon another grand jury.

Special grand jury.-If there is more than one person in custody awaiting the action of the grand jury, and out of the grand jurors summoned the first thirteen are impaneled as a grand jury for the term, and three of these

have formed an opinion as to the guilt of one of the persons in custody, and are challenged by him for that reason, the court may direct the jury to pass on all the cases except that of the challenger, and summon a special grand

jury to pass on his case: People v. Manahan, 32 Cal. 68; see also People v. McDonnell, 47 Id. 134; People v. Colby, 54 Id. 40. After the commencement of the session of the court, if it

908. Order for special grand jury.

shall appear proper to the judge that a grand jury should be summoned, he may cause an order to be entered to that effect: People v. Long, 43 Id. 444.

SEC. 908. The order must require the sheriff to summon sixteen persons, qualified to serve as grand jurors, to appear at a time specified, and a copy thereof, under the seal of the court, must, by the clerk, be delivered to the sheriff.

909. Order, how executed.

SEC. 909. The sheriff must execute the order and return it, with a list of names of the persons summoned.

910. Special grand jury, how formed.

SEO. 910. At the time appointed the list must be called over, and the names of those in attendance be written by the clerk on separate ballots and put into a box, from which a grand jury must be drawn.

CHAPTER III.

POWERS AND DUTIES OF A GRAND JURY.

915. Powers of a grand jury.

SEO. 915. The grand jury must inquire into all public offenses committed or triable within the county, and present them to the court, either by presentment or by indictment.

Grand jury, powers of-The grand jury should inquire into all offenses committed within the county not barred by the statute of limitations: 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, Car. & M. 247; Proffat 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 private 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 offense 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 Pa. St. 30, 33, per Agnew, J. If a witness swears falsely before

916. Presentment defined.

them they may, of their own motion and knowledge, indict 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: State v. Reid, 20 Iowa, 414. So if dismissed to a future day, on whlch 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.

Impaneling grand juries: Const. Cal., art. 1, sec. 8; Code Civ. Proc., secs. 241-243, post.

SEC. 916. A presentment is an informal statement in writing, by the grand jury, representing to the court that a public offense has been committed which is triable in the county, and that there is reasonable ground for believing that a particular individual named or described therein has committed it.

Presentment.-Mr. Proffatt, in his work on jury trials, thus states the difference between a presentment and an indictment: "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

917. Indictment defined.

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: Sec. 51. Mr. Bishop considers the distinction between a presentment and the American indictment as 66 very thin:" 1 Bish. Crim. Proc., sec. 136.

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

Indictment must contain what: Sec. 950, and notes.

Indictment, sufficiency of: Sec. 959, and notes.

918. Foreman may administer oaths.

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

919. Evidence receivable before the grand jury.

SEC. 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. Deposition of witness, when taken before a magistrate upon a criminal charge, may be used before the grand jury: People v. Stuart, 4 Cal. 218. A defendant may voluntarily tes

tify before a grand jury: People v. King, 28
Id. 266.
Legal evidence: People v. Tinder, 19 Cal.

542.

920. Grand jury not bound to hear evidence for defendant, but may order explanatory evidence, etc.

SEC. 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.

Defendant may voluntarily testify before a grand jury: People v. King, 28 Cal. 266.

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 evidence to be produced. Formerly, it was held that an indictment might be found if evidence were produced sufficient to render the truth of the charge probable. But a different and a more just and merciful rule now prevails. To justify the finding of an indictment, you must be convinced, so far as the evidence before you goes, that the accused is guilty; in other words, you ought not to find an indictment unless, in your judgment, the evidence before you, unexplained and uncontradicted, would warrant a conviction by a petit jury:' Charge to the grand jury, 2 Saw. 667, 670.

921. Degree of evidence to warrant indictment.

SEC. 921. The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury.

Grand jury, duty of.—Grand jury should not find an indictment when the evidence, taken together, if unexplained or uncontradicted, would not warrant a conviction before a trial jury: People v. Tinder, 19 Cal. 543. In

finding an indictment, it is not the duty of the grand jury to determine the degree of the crime: People v. King, 27 Id. 507; People v. Nichol, 34 Id. 211.

922. Grand jurors must declare their knowledge as to commission of public offense.

SEC. 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. Must inquire into cases of persons imprisoned, etc.

SEC. 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.

Grand jury must inquire into cases of all persons under arrest.-It is the duty of the grand jury to inquire into cases of persons

under arrest, although they may not have been held to answer as provided in section 872: People v. Geiger, 49 Cal. 651.

924. Entitled to access to public prison, etc.

SEC. 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. When and from whom they may ask advice, and who may be present during their sessions.

SEO. 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.

Persons present other than grand jurors and witnesses.-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, 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. Their deliberations, however,

while voting on finding a bill should be private, but the effect of the presence of a third person at that time is not settled by the authorities: State v. Kimball, 29 Iowa, 267; Shattuck v. State, 11 Ind. 473; State v. Fasset, 16 Conn. 457. The better practice is to exclude everybody but members from the room at such time: Shattuck v. State, 11 Ind. 473. And this is required by this section. The defendant may be present and cross-examine witnesses: Lung's Case, 1 Conn. 428; State v. Fasset, 16 Id. 457.

An Act in relation to interpreters before grand juries.
[Approved March 23, 1872; 1871-2, 540.]

Interpreter before grand jury.

SECTION 1. The grand jury or district attorney may require, by subpoena, the attendance of any person before the grand jury as interpreter; and the interpreter may be present at the examination of witnesses before the grand jury.

SEC. 2. This act shall be in force from and after its passage.

Witness may be interpreter: People v. Ramirez, 56 Cal. 533.

926. Secrets of grand jury to be kept, except, etc.

SEC. 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.-The obligation of secrecy is imposed on grand jurors, for the public benefit, and not for the benefit of persons that may appear before them as witnesses; and such witnesses cannot take advantage of this obligation in a criminal prosecution against them: People v. Young, 31 Cal. 563. Different reasons are given why this obligation of secrecy is imposed. The principal one is that of public policy. So, in order to secure freedom of deliberation and opinion among grand jurors, and to prevent a person from attempting to escape against whom proceedings are being taken, and also to prevent the testimony produced before the grand jury from being contradicted at the trial of the indictment, by subornation of perjury on the part of the accused, the law requires such proceedings to be secret: 1 Greenl. Ev., sec. 252; Little's Case, 25 Gratt. 930.

Where, however, the purposes of secrecy are accomplished, the better opinion is that the doings of a grand jury may be revealed if justice demands it: 1 Bish. Crim. Proc., sec. 857; Commonwealth v. Mead, 12 Gray, 167, 170; State v. Broughton, 7 Ired. L. 96; State v. Brewer, 8 Mo. 373. The testimony may come from a grand juror himself: State v. Wood, 53 N. H. 484; United States v. Charles, 2 Cranch 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. & Kir. 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.

927. Grand juror not to be questioned for his conduct, except, etc.

of the machinery of the county court. They were not volunteers, but were engaged in the performance of a duty that was compulsory. În finding the indictment complained of, they acted within the legitimate sphere of their duty, and cannot be held civilly responsible.

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To hold grand jurors liable for damages in civil actions would be against the policy of the law, and we find no authority in the adjudged cases for so holding:" See Hunter v. Mathis, 40 Ind. 356.

SEO. 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 fellow-jurors. Grand jurors not responsible in civil damages. In Turpen v. Booth, 56 Cal. 65, 69, this section was held to mean that grand jurors are not liable for damages in a civil action for anything done by them in the grandjury room, although actuated by malice. "They [grand jurors] have certain duties to perform under the law, of a quasi judicial character; and in the performance of such duties the law invests them with judgment and discretion. The grand jury was an essential part 928. Duties of grand jury as to examining official books, records, and accounts. SEC. 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 impanelment of such grand jury, shall charge them specially as to their duties under this section. [New section, approved April 16, 1880; Amendments 1880, 43 (Ban. ed. 380); took effect immediately.]

CHAPTER IV.

PRESENTMENT, AND PROCEEDINGS THEREON.

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

SEC. 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.

932. Must be presented to the court and filed.

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

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