People v. Godfrey

California Court of Appeal Aug 2, 1929 No. Docket No. 1796.Published

Before: Houser

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Holding. A defendant is precluded from challenging the legality of a grand jury's selection or composition if the objection was not raised by motion at the time of arraignment.

Issues

Whether a defendant may challenge the validity of an indictment based on grand jury selection defects after the judgment of conviction has been rendered.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“it does not follow that in the circumstances defendant is now in a position to take advantage of such defects.”

HOUSER, J.

In brief, the history of the litigation represented by this appeal is that in the month of May, 1925, defendant was convicted of the crime of robbery. His appeal from the judgment rendered against him resulted in an affirmance of such judgment.

{People

Smith,

76 Cal. App. 105 [243 Pac. 882].) In the month of January, 1929, which was nearly four years after the date of his

[234]

conviction, defendant presented a motion in the trial court to vacate the judgment theretofore rendered against him. In substance, the grounds of such motion were that the verdict of the jury by which defendant was found guilty of the charge preferred against him was void—first, for the reason that on the return of the verdict by the jury the clerk of the court failed to read the verdict to the jury or to inquire of the jury whether it was their verdict— all as required by section 1164 of the Penal Code, and, secondly (without going into detail as set forth in the motion), that the grand jury which presented the indictment against defendant was not legally drawn or qualified. The motion, by order of the trial court, was denied, and defendant has appealed to this court from such order.

In his closing brief appellant has expressly abandoned the point first suggested herein.

Assuming (but not conceding) that the facts as shown. by the record presented herein compel the conclusion that the grand jury in question was irregularly drawn and selected, nevertheless, according to the statutes and the decisions affecting such a situation, it does not follow that in the circumstances defendant is now in a position to take advantage of such defects.

By a provision of the Penal Code, among other things, in effect it is provided that in answer to his arraignment the defendant may move to set aside the indictment or information (see. 990, Pen. Code) ; and section 995 of the same code provides that the indictment must be set aside “where it is not found, indorsed, and presented as prescribed in this code ...” In the case of

People v. Godfrey

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HOUSER, J.

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