Ex parte Clarke

In bank, McKinstry, J.: At- the conclusion of term of the County Court, at which a charge of murder against the petitioner had been resubmitted to the grand jury, under § 941 of the Penal Code, (the grand jury having dismissed the charge) the Court made an' order discharging the petitioner, and releasing the’ sureties upon his bail bond.

Petitioner was afterward arrested under a warrant issued on a complaint filed with a Justice of the Peace, charging him with the crime of murder, and is now in custody, pending his examination before such Justice as a committing magistrate.

Sections 941 and 942 of the Penal Code are as follows :

“ Sec. 941.—If twelve grand jurors do not concur in finding an indictment against a defendant who has been held to answer,the depositions and statement, if any, transmitted to them must be returned to the Court, with an indorsement thereon, signed by the foreman, to the effect that the charge is dismissed.

“ Sec. 942.—The dismissal of a charge does not prevent its resubmission to a grand jury as often as the Court may direct. But without such direction it cannot be resubmitted.” .

These sections are to' be considered in connection with the following:

“ Sec. 1,382.—The Court, unless , good cause to the contrary is shown, must order the prosecution or indictment to be dismissed in the following cases:

“ 1. When a person has been held to answer for a public offense, if an indictment is not found against him at the next term of the court of which he is held to answer ;

“ 2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial at the next term of the court in which the indictment is triable, after it is found.

“Sec. 1,383.—If the defendant is not indicted or tried, as provided in the last section, and sufficient reason therefor is shown, the Court may order the action - to be continued from term to term, and in the meantime may discharge the defendant from custody on his own undertaking of bail for his appearance [414]to answer the charge at the time to which the action is continued.

“ Sec. 1,384.—If the Court directs the action to be dismissed, the defendant must, if in custody, be discharged therefrom; or if admitted to bail, his bail is exonerated, or money deposited instead of bail must be refunded to him.”