People v. Simmons

HAYNES, C. Appellant was indicted by the grand jury of Sonoma county for the crime of incest. The indictment was set [2]aside upon defendant’s motion upon the ground that one of the grand jurors was incompetent, in that he had not been assessed on the last assessment-roll of said county. Thereupon the court resubmitted the case to the same grand jury, but directed Mr. Eamage, the incompetent juror, not to be present or participate in the examination of the case. This instruction was obeyed, and the grand jury found and returned a new indictment for the same offense. Defendant thereupon objected to the panel, and moved to set aside the new indictment upon the ground that the grand jury was illegal and not impaneled in the manner required by law, in that there were only eighteen legal and competent grandl jurors, Eamage being incompetent. This motion was denied, and defendant excepted. A trial was had and the defendant was found guilty and sentenced to imprisonment for the term of ten years. This appeal is from the order denying said motion, and also from an order denying his motion for a new trial based upon the same grounds, and also from the judgment.

The only question made or argued in appellant’s brief is that presented by his said motion to dismiss the indictment, and which is also presented by his motion for a new trial, which was based solely upon that ground.

We concur in the views of the learned attorney general that the order denying the motion to set aside the indictment is not appealable (Pen. Code, see. 1337), and that the motion for a new trial was not made upon any of the statutory grounds upon which alone such motion must be based. (Pen. Code, see. 1181.) There is, however, an appeal from the judgment, and section 1359 of the Penal Code provides: “Upon an appeal taken by defendant from a judgment, the court may review any intermediate order or ruling involving the merits, or which may have affected the judgment.”

As the motion, if granted, would have affected the judgment, the order may be reviewed on this appeal from the judgment, the proceedings having been brought up by bill of exceptions.

Appellant bases his motion upon subdivision 4 of section 995 of the Penal Code, which provides that an indictment may be set aside on motion “when the defendant had 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.”