People v. Beatty

Baldwin, J. delivered the opinion of the Court—Cope, J. and Field, C. J. concurring.

The defendant was convicted in the Court of Sessions of San Francisco County, of the offense of dealing the game of faro, contrary to the provisions of the Act of April 27th, 1857. (Statutes of 1857, p. 108.)

A very ingenious argument has been made by the counsel for Appellant to show that the judgment cannot stand, because of sundry defects and irregularities in the proceedings.

The first point is, that' the Court below erred in refusing the motion to quash'the indictment, upon the ground that it was found by a grand jury impanneled before the alleged offense was committed.

The statute (Wood’s Dig. 284, Sec. 181) provides, that a challenge may be taken to the panel of the grand jury, or to any individual grand juror, (in the cases afterward described,) by the people or by the defendant. By.Section 189, “A person held to answer, etc. can take advantage of any objection to the panel, or to an individual grand juror, in no other mode than that by challenge, as prescribed in the preceding sections.” Sec. 196: “If an offense be committed during the sitting of the Court, [570]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. Sec. 279, p. 251: “When the defendant has not been held to answer before the finding of the indictment, he may move to set it aside on any ground which would have been a good ground for challenge either to the panel or to any individual grand juror.”

It cannot be questioned that the powers of the grand jury are general, to inquire into and present all offenses which occur in the county. There is no qualification in the statute as to the time of their commission, except that constituted by statutes of limitation. There is no reason, apart from express statutory provisions, which should prevent immediate action by a grand jury when a crime is committed, while many reasons exist for promptness of proceeding. The 196th Section, already quoted, is indicative of this policy. The 205th Section is to the same effect. The grand jury has the power to inquire, and it is their duty to inquire, into all public offenses, committed or triable within the county, and to present them to the Court, either by presentment or indictment j and the oath of the foreman, (Sec. 191,) is as comprehensive and as expressive of this same general duty. As this requirement would comprehend the power to find an indictment for a crime committed after the impanneling of the jury, as well as before, the defendant is driven to show that this power has been qualified by some other portion of the statute, and he seeks to do this by the argument that the statute evidently contemplates the defendant should have a right of challenging the panel, and that it has only given this right in certain cases, of which this is not one. The conclusion, therefore, is that this case, in which the defendant was held to answer for an offense committed subsequently to the impanneling of the grand jury, is not included within those cases upon which the grand jury can act. But it is quite as rational to construe the subordinate provisions with reference to the general power, as to deny effect to the general provision, because not harmonious with the subordinate provisions. It is true, Sec. 189 declares that, when a person is held to answer, he can take advantage of objections to the panel or to individual jurors in no other mode than that by challenge, as prescribed in the preceding section.