People v. Travers
Before: Garoutte, McFarland
Synopsis
Criminal Law—Grand Jury—Challenge after Discharge. — After a grand jury has been discharged, a defendant against whom an indictment has been found cannot have the jurors reassembled in court, formerly challenged, and examined on their voir dire, on the ground that the jury was not in session when he was held to answer, and that he had no opportunity to challenge the jurors.
Id,—Ground of Challenge—Setting Aside Indictment — Proof of Ground. — A defendant indicted without an opportunity to challenge the grand jury may have the indictment set aside on any ground which would have been good ground for challenge, either to the panel or to any individual juror; but the fact which would have been good ground for challenge must he proven in the same way as other facts, either by the examination of the jurors as witnesses under subpoena, or by other competent evidence.
Id. — Continuance.—For the purpose of producing evidence to sustain a motion to set aside the indictment upon a good ground for challenge to the grand jury, the defendant is entitled to a continuance upon a proper showing, but not in the absence of such showing.
Id. — Homicide — Instruction—Conviction of Innocent Persons.—An instruction to the jury, upon the trial of a defendant for murder, to the effect that “while it is true that innocent persons have been convicted in the past, there is no proof in this case of any such fact,” and that the . jury “are not justified in considering such matters in determining the guilt or innocence ” of the defendant, which must be determined “from the evidence admitted in the case, and not from sympathy or prejudice,” and that “ if all criminals must go free because there is a possibility of making mistakes, society might as well, disband,” is erroneous, and objectionable, as indicating hostility to the defendant, and invading the province of the jury.
Id. — Reasonable Doubt. — The jury have a right to consider that innocent men have been convicted, and to consider the danger of convicting an innocent man, in weighing the evidence to determine whether there is a reasonable doubt as to the defendant’s guilt.
Id.—Defense of Insanity — Presumption—Burden of Proof—Preponderance of Evidence. —A person is presumed to be sane until the contrary is shown, and the burden is upon a defendant relying upon it as a defense to show his insanity by a preponderance of evidence.
Id. — Reasonable Doubt. — The rule that it is sufficient to raise a reasonable doubt as to the defendant’s guilt does not apply to the defense of insanity.
Id.—Insanity Produced by Intoxication. —Insanity produced by long-continued intoxication affects responsibility in the same way as insanity produced by any other cause; but to constitute a good defense to an indictment for murder, it must be settled insanity, and not merely a temporary mental condition produced by recent use of intoxicating liquor.
Opinion — McFarland
McFarland, J. The appellant was convicted of murder, and appeals from the judgment on the judgment roll, and a short bill of exceptions which shows certain proceedings had on a motion to set aside the indictment.
1. Appellant, upon his arraignment, moved to set aside the indictment, upon the ground that he had not been held to answer when the grand jury which indicted him was in session, and that the grand jurors were prejudiced against him, and had unqualified opinions that he was guilty. He introduced on the motion an affidavit made by the county clerk and one made by himself, which showed that he had not been held to answer when he was indicted, and had no opportunity to challenge the grand jury. No other evidence was introduced. The bill of exceptions states that “defendant then offered to leave the challenge to the said grand jurors who indicted him to prove the challenge good, and moved the court for reasonable time and opportunity to examine each juror on his voir dire in support of said challenge. The court overruled said motion and challenge, and defendant excepted.” The first part .of the language above quoted is obscure. It probably was intended to state that defendant moved for leave to challenge the grand jurors, and thus “prove the challenge good.” At all events, the idea of appellant seems to have been that he had the right to have the discharged grand jurors reassembled in court, and to proceed to challenge them formally, and to examine them on their [235]voir dire, just as he might have done before the indictment was found. But this is evidently a mistaken notion of the law. A challenge to a grand juror is a preliminary objection to the qualification of the juror, and its purpose is to prohibit the juror from sitting and inquiring into the charge against the party interposing the challenge; and if the challenge be allowed, the juror “ cannot be present or take part in the consideration of the charge against the defendant who interposed the challenge, or the deliberation of the grand jury thereon." (Pen. Code, sec. 900.) It is clear that after a grand jury has completed its work and been discharged, the conditions which make a challenge possible no longer exist. But a defendant who has been indicted without an opportunity to challenge the grand jury is not without remedy. Section 995 of the Penal Code provides that an indictment may be set aside “when the defendant has 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." This language clearly contemplates that the time for challenges has passed, and provides that a defendant may still prove any fact which “would have been good ground for challenge” if he had had an opportunity to interpose it at a time when a challenge was possible. But the fact which would have been good ground for challenge must be proven in the ordinary way in which other facts are proven, by the introduction of evidence, either by the examination of the jurors, or by other competent evidence. For this purpose, of course, defendant is entitled to the process of subpoena to compel the attendance of his witnesses; but there is no process by which discharged grand jurors can be reassembled in their official character, and subjected to the original process of challenging. For the purpose of producing this evidence, a defendant would, no doubt, upon a proper showing, be entitled to a con
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