People v. Bright

ANGELLOTTI, J.

This is an appeal from an order of the-superior court of Tuolumne County granting a motion to set aside an indictment found by the grand jury of that county against defendant, charging him with a felony. The appeal was properly taken to the district court of appeal, and has come to this court under an order granting a hearing herein after decision by the district court of appeal.

The defendant had not been held to answer before the finding of the indictment. The motion to set aside the indictment was based on the ground that one of the grand jurors, Charles E. Blanchard, had such a state of mind in reference to the cause as would prevent him from acting impartially and without prejudice to the substantial rights of the defendant. Our Penal Code provides that an indictment must be set aside by the trial court, on motion of the defendant, “when the defendant had not been held to answer before the finding of the indictment, on any ground which would have been good ground for challenge, either to the panel or to any individual grand juror” (sec. 995), and that a challenge to an individual grand juror may be interposed on the ground “that a state of mind exists on his part in reference to the case, or to either party, which will prevent him from acting impartially and without prejudice to, the substantial rights of the party challenging,” with the same proviso as to opinions founded on public rumor, statements in public journals, or common notoriety as exists in regard to trial jurors. (Sec. 896.) Where it is found on such a motion made by a defendant who had not been held to answer prior to indictment, that the individual grand juror was disqualified to act by reason of this statutory provision and that the challenge is good, the trial court is bound to set aside the indictment

(People

v.

Landis,

139 Cal. 426, [73 Pac. 153]), provided, of course, such juror has taken part in the

[665]

consideration of the charge against the defendant, or the deliberations of the grand jury thereon. (Pen. Code, sec. 900.)

It cannot be seriously disputed that the trial court was warranted in concluding that the grand juror was disqualified by reason of this provision of the statute. On the hearing of the motion the juror frankly admitted the existence at the time of the impanelment of the grand jury and throughout the proceedings leading to the return of the indictment of a state of mind on his part with reference to the case that would prevent him from acting impartially, and in recognition of this condition retired from the grand jury room when the grand jury was about to vote upon the question of indictment and was not present at and did not participate in such vote.