People v. Prather

Defendant has been convicted of the crime of perjury, and appeals from the judgment and from the order denying his motion for a new trial. He first attacks the validity of the impanelment of the grand jury which found the indictment against him.

Among other matters, section 242 of the Code of Civil Procedure provides: "When, of the persons summoned as grand jurors, and not excused, nineteen are present, they shall constitute the gland jury. If more than nineteen of such persons are present, the clerk shall write their names on separate ballots, which he must fold so that the names cannot be seen, place them in a box, and draw out nineteen of *Page 438 them, and the persons whose names are on the ballots so drawn shall constitute the grand jury. If less than nineteen of such persons are present, the panel may be be filled as provided in section 226 of this code." In this case the venire consisted of thirty, four of these not being served by the sheriff. Instead of strictly following the statute by placing in the box the names of those jurors who were present in court and unexcused, the court proceeded to draw the jury from the entire thirty names placed in the box, and thus impaneled the jury from those present and not excused. The difference in the manner of forming the jury between the course followed and the course prescribed by the statute is purely a difference in form only. (People v. Leonard, 106 Cal. 317. ) Having failed to secure nineteen jurors from the regularvenire, the court completed the jury from a special venire, and the course thus pursued was strictly regular.

The validity of the indictment is assailed in various ways and upon various grounds. The chief objection is based upon the fact that a demurrer was sustained to an information charging the defendant with the crime here charged, and thereupon the court ordered a new information to be filed. In view of this action of the trial court, it is now claimed that the defendant could not thereafter be prosecuted by indictment for the offense charged in the information. The practice here pursued was followed in Peoplev. Whelan, 117 Cal. 559, and in that case the court said: "Nor did the facts warrant the arrest of judgment. It was within the jurisdiction of the grand jury to take cognizance of the charge without an order of court submitting it to them. No such order was required, as the charge had not previously been examined by that or any former grand jury; and a demurrer having been sustained to the information, with a direction that a new one be filed, the status of the charge was, in all material respects, the same as though no information had ever been filed." The law as here enunciated is entirely satisfactory to the court.