People v. Colby

Citations

• 54 Cal. 37

Syllabus

<p>Ceiminal Law—Indictment.—A motion to set aside an indictment can lie based only upon one of the grounds enumerated in sec. 995, Penal Code. The clause in subd. 1 of that section, that an indictment must be set aside “ when not found as prescribed in this Code,” means simply that it must be concurred in by the constitutional number, twelve, as provided in sec. 940; and will not support a motion to set the indictment aside on the grounds that the grand jury was not properly selected, summoned, or impanneled.</p> <p>Same—Geand Juey.—Wallace, C. J., dissenting: Where some of the persons summoned on a grand jury are successfully challenged by the defendant, the remaining grand jurors, if of the requisite number, by the operation of the statute constitute the grand jury, to whom the charge against the defendant must be submitted; and the court has no authority to form a special grand jury for the case by impanneling others in place of those who were challenged.</p> <p>Same—Indictment.—Wallace, C. J., dissenting: If an indictment be found by such a grand jury, it should be set aside on the grounds specified in the first and third subdivisions of see. 940, Penal Code; that is to say, both because not found as prescribed in this Code, and because unauthorized persons were present during the session of the grand jury.</p>