People v. Southwell
Before: Wallace
Synopsis
Challenge to Panel of Grand Jury. — Where S., who had been indicted for a criminal offense, but was not held to answer prior to the finding of the indictment, on his arraignment moved to set aside the indictment, on the ground of irregularities in selecting, summoning, and impaneling the Grand Jury: held, that the motion was in effect a challenge to the panel.
Idem. — It is competent for the Legislature to restrict the grounds of the challenge to the panel of the Grand Jury.
Hule of Construction. — A estatute must be so construed, if practicable, as to give effect to every part of it, and so as to reconcile apparent inconsistencies, if it can be done without torturing the language.
Grounds of Challenge to Panel of Grand Jury. — It was intended by section one hundred and eighty-two of the Practice Act to restrict the right of challenge to the panel of the Grand Jury to the three grounds therein enumerated.
Motion to Set Aside an Indictment. — The grounds for setting aside an indictment, enumerated in section two hundred and seventy-eight of the Practice Act, are irregularities in the proceedings of the Grand Jury after it has been organized; and the„clause providing that the indictment shall be set aside where not found as prescribed in the Act, will not support a motion to set aside an indictment, on the ground that the Grand Jury was not properly selected, summoned, or impaneled.
Idem. — Irregularities in Grand Jury. — Under section two hundred and seventy-eight the motion to set aside the indictment is addressed to irregularities in the proceedings of a valid Grand Jury, and not to irregularities in its formation.
Error in Serving Venire of Grand Jury. — A Grand Jury summoned in pursuance of a venire duly issued, is not illegal merely because the Court erroneously directed the venire to be served by the Coroner instead of the Sheriif.
Opinion
By the Court: The defendant was indicted for a criminal offense, but was not held to answer prior to the finding of the indictment. On his arraignment "lie moved to set aside the indictment, on the ground that certain irregularities had occurred in select[146]ing, summoning, and impaneling the Grand Jury. The motion was denied, and this ruling is assigned as error.
In its legal effect the motion was a challenge to the panel of the Grand Jury, and proceeded on the assumption that by reason of the irregularities complained of it was an illegal body which had usurped the functions of a Grand Jury, and that its pretended indictments were, therefore, void. No objection was interposed to the regularity of its proceedings, if it be assumed to have been a valid and lawful Grand Jury. The motion, therefore, was substantially and in its legal effect a challenge to the panel; and the question for determination is whether the grounds of challenge relied upon were available to the defendant on a motion to set aside the indictment. Section one hundred and eighty-two of the Practice Act, then in force, provided that “challenge to the panel may be interposed. for one or more of the following causes only : First—That the requisite number of ballots was not drawn from the jury box as prescribed by law. Second—The notice of the drawing of the Grand Jury was not given as prescribed by law. Third—That the drawing was not had in the presence of the officers or officer designated by law.”
These are the only grounds of challenge to the panel which the statute recognizes; and all others are excluded, apparently ex industria. It is not for the Courts to decide upon the wisdom of restricting the challenge within such narrow limits; and it would, doubtless, have been competent for the Legislature to restrict it still further, or,' possibly, to deny it altogether. We must take the statute as we find it, and if it impose a hardship upon persons accused of crime, the fault is with the Legislature and not with the Courts. We hold then, first, that the defendant’s motion was in effect' a challenge to the panel; and second, that there can be no ground of challenge to the panel except those enumerated in the statute. None of the irregularities [147]
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