People v. Thurston — 5 Cal. 69

Majority

p. 69

THE PEOPLE OF THE STATE OF CALIFORNIA, Respondents, v. PLUMMER W. THURSTON, Appellant.

Headnote

An indictment found by a Grand Jury composed of twenty-four persons, is worthless, and all proceedings based upon it are void.

Appeal from the Court of Sessions of Yuba County.

This was a case brought up for review by writ of error. The opinion of the Court contains the material facts.

G. N. Swezey, for Appellant.

Cited Black. Com., B. IV., p. 302. Arch. Crim. Prac., 161. Wharton's Crim. L. 169. 2 Mass., 149 . 9 Ib., 109 and note.

The Attorney General, for Respondents.

Bryan, J., concurred.

The appellant was indicted by a Grand Jury, composed of twenty-four persons. This was erroneous. The statute provides that twenty-four shall be summoned, but limits the number of those competent to act to twenty-three.

This was the rule at common law ; twenty-three only being taken of the twenty-four summoned, so that twelve might constitute a majority. Sec. 4th, Blackstone, sec. 302.

If more than twenty-three persons can hold an inquest of the County, there would be no limit to the number, and a party might be indicted by less than a majority of the Jury, our statute having provided that twelve Grand Jurors may present an indictment. It is said that this objection comes too late, and ought to have been taken advantage of before the trial.

It does not appear upon the face of the indictment, and it is doubtful if it were known to the prisoner ; even if such was the fact, I regard the indictment thus found by an illegally constituted body as worthless, and all proceeding based upon it void.

Judgment reversed.