People v. Hanstead

McFARLAND, J.

Defendant was charged in an indictment with the crime of uttering a fictitious instrument in writing, and the jury returned a verdict of guilty. He appeals from the judgment and from an order denying his motion for a new trial.

Counsel for appellant contends very vigorously that the evidence was totally insufficient to warrant the verdict; and he further argues that during the trial many errors of law were committed by the court which were material and prejudicial to appellant; but as, in our opinion, the court should have granted the motion of appellant to set aside the indictment, it is not necessary to discuss any of his other contentions.

The present indictment on which appellant was tried was presented to the court, and filed as a record thereof, on October 16, 1900. But prior to that date, and on July 23, 1900, the same grand jury had presented to said court an indictment charging appellant with the identical crime with which he was charged in the second indictment, on which he was tried. The first indictment was filed as a record of the court; the appellant was arraigned to plead to said indictment, and-his plea of not guilty was entered. That indictment, with appellant’s

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plea, was pending when the second indictment was presented and filed; but afterwards the court, on motion of the prosecution, and against the appellant’s objection and exception, made an order dismissing the first indictment, to which order appellant excepted. Both indictments are in the record, and it is beyond question that they both charged appellant with the same offense; neither is it questioned that they were both found by the same grand jury. At the proper time appellant moved to set aside the second indictment, upon the ground that it was found by the same grand jury who found the first indictment, and that, therefore, they were disqualified from again acting on the case or finding the second indictment. The court denied the motion, and appellant excepted.

It is clear that grand jurors who have examined the charge against one accused of .a crime, and found and presented an indictment against him for such crime, thus officially declaring their conviction upon the evidence before them that he is probably guilty, are disqualified from again passing upon a second charge against him for the same offense. In such a case, if the accused had the opportunity of challenging the grand jurors, a challenge by him to each of the jurors, under subdivision 6 of section 896 of the Penal Code, on the ground “that a state of mind exists on his part in reference to the case,” etc., would undoubtedly have been good; but in the absence of such opportunity, it is provided by section 995 of the Penal Code that the indictment “must be set aside” on several grounds, and, among others, “on any ground which would have been good ground for challenge either to the panel or to any individual grand juror.” In