Burrage Smith were indicted for having, with others, conspired without legal authority or justifiable cause to carry off and transport one William Morgan to a place unknown. Objection was taken to the indictment that one Benjamin Wood, one of the grand jurors, had, before the finding of the bill of indictment, in repeated conversations declared that the defendant was concerned in the abduction of Morgan, aided in carrying him off, was guilty thereof, and ought to be punished therefor; and it was alleged that the defendant had not been apprised of any criminal proceeding against him, not having been arrested or required to enter into recognizance. In reply to this objection, Savage, chief justice, said: "The books are silent on the subject of such exeption after indictment found, and in the absence of authority I am inclined to say, in consideration of the inconvenience and delay which would ensue in the administration of criminal justice were a challenge to a grand juror permitted to be made after he was sworn and impaneled, that the objection comes too late.” In the same case Marcy, justice, said: "As the defendant was not recog‐ nized to appear at the sessions when the indictment was found, he did not know that any charge would be laid before the grand jury against him, and consequently he had no opportunity to object to the jurors before they were sworn and had presented their indictment. .. Though I feel the force of the argument that the defendant should be allowed the benefit of an exception to a partial grand juror, I cannot turn my view from the consideration of the great delays and embarrassments which would attend the administration of criminal justice if it was to be obtained in the way now props d. No authority for adopting this course was shown on the argument, and I have not since been able to find any." And in Monroe v. Brigham, supra, Chief Justice Shaw remarks: "Upon general grounds, unless presumptively required by statute, it would be inconsistent with the purposes of justice to allow such an exception to a juror. . . Where no other incapacity exists, and no injutice is done, nothing but a positive rule of law would seem to require that a verdict should on that account be set aside."

§ 1853. A ground for challenge is not necessarily such as will vitiate an indictment found by the jury.

This authority is cited merely to show how reluctant the courts are to interfere with the indictments of a grand jury by reason of the unfitness of one or more of the grand jurors. Nevertheless, courts will interfere where there has been a positive disqualification imposed by statute. But as, in my judgment, the fact that the juror has served within two years as a juror in the court is not made by section 812 a positive disqualification, but only a ground of challenge, I do not think that it can be urged as a reason for quashing the indictment. Demurrer to pleas in abatement sustained.

§ 1854. Selecting.- Where, in drawing a grand jury under the provisions of the act of June 30, 1879, § 2, the name of one of the grand jurors named in the venire, and who assisted in finding the indictment, was not put into the box by any competent authority, and not drawn, and there was no imputation that his name was put into the venire in bad faith, the court held it to be a mere irregularity, which did not vitiate the action of the grand jury. United States v. Ambrose,* 3 Fed. R., 283.

§ 1855. Under a law requiring that the grand jury shall consist of fifteen members, it is error to draw additional jurors after the term, when the requisite fifteen have been obtained. United States v. Reynolds,* 1 Utah Ty, 226.

§ 1856. Section 459 of the Revised Statutes of Utah, which declares that "when necessary the court shall issue an order requiring an officer to summon fifteen judicious men, residents of the county, for a grand jury, who shall be sworn to inquire faithfully into offenses, and present indictments by the agreement of at least twelve of their number against offenders

who should be prosecuted," etc., is held to apply to the county courts, and not the federal or district courts. These latter courts may select their grand jurors from the body of their territorial jurisdictions. The People v. Green,* 1 Utah T'y, 11.

§ 1857. The provision of the second section of the act of congress of June 30, 1879, that the clerk, and a gentleman of different politics and established character, etc., shall put into the jury box certain names, and that there shall be drawn therefrom, in a certain manner, a certain number to compose the grand jury, is mandatory; yet all that is required is an honest intention to conform to the statute, and to carry out its provisions in good faith. United States v. Ambrose,* 3 Fed. R., 253.

§ 1858. Where an officer in drawing a grand jury is obliged by statute to use the state jury box and ballots, no objection can be taken to the construction of the box or that the ballots were not folded as required by state laws, but the names might be seen by the officer drawing the ballots. United States v. Reed,* 2 Blatch., 435. Under the act of congress of July 20, 1840, the federal courts are governed, in the matter of drawing and impaneling grand and petit juries, by the laws and regulations of the state in which the court is sitting, where such court has by rule adopted them. Ibid.

§ 1859. Summoning. In the district courts for Utah the grand jury is properly summoned by the United States marshal on a venire issued by order of the judge, and the summoning of such jury is regulated by the laws of congress and not by those of the territory. Demurrer to Challenge to the Array of Grand Jury,* 12 Int. Rev. Rec., 162.

§ 1860. Under the act of August 8, 1846 (9 Stat. at L., 73, § 3), a venire for a grand jury will issue only upon an order of the court. United States v. Reed,* 2 Blatch., 435.

§ 1861. Special venire.- A statute providing that county commissioners shall select grand jurors prior to a term of court, to serve at such term, and that the jurors shall be summoned upon a venire issued to the sheriff, and providing for a special venire by the court, on failure of the commissioners to do their duty, or on failure of the jurors selected to appear, does not exclude the common law method of selecting jurors in all cases; and after the discharge of the panel selected by the commissioners, the court may, during the same term, issue a special venire if the exigency requiring a second panel exists. Mackey v. The People,* 2 Colo. T'y, 13.

§ 1862. Proceedings of grand jury. The court will not, upon motion of the attorney for the United States, send back to the grand jury an indictment, which the same grand jury had, some days before, at the same term, returned "ignoramus," with an instruction that, if they should find the facts stated in it to be true, they should return it a true bill. (THURSTON, J., dissenting.) United States v. Watkins,* 3 Cr. C. C., 441. See § 1819, 1820.

§ 1863. Section 48 of the Criminal Code of the state of Oregon, declaring that, “in the investigation of a charge for the purpose of indictment, the grand jury shall receive no other evidence than such as might be given on the trial of the person charged with the crime in question," applies ouly to cases where a person has been duly charged with the commission of crime before a committing magistrate and held to answer. United States v. Brown,* 1 Saw., 531.

§ 1884. A court cannot inquire into the mode of conducting the examination of witnesses who were properly before a grand jury, for the purpose of testing the validity of an indictment. The court has no control over the discretion of the grand jury in that matter. United States v. Reed,* 2 Blatch., 435.

§ 1885. Evidence before a grand jury must be competent, legal evidence, such as is legitimate and proper before a petit jury. Ibid.

§ 1866. It seems that a court will never examine the evidence before a grand jury to see if it is sufficient. Ibid.

§ 1567. A general oath to give evidence touching criminal charges to be laid before a grand jury, without reference to any particuler person, is good though many separate indictments are found: and so also is such an oath naming one person and adding "and others." Ibid. $1868. Powers.- No act of congress directs grand juries, or defines their powers. The powers of grand juries are given by necessary implication from the laws bestowing criminal jurisdiction. Grand juries which are summoned to attend the courts of the United States possess powers and duties co-extensive with the jurisdiction of the courts which they attend. The district court possessing power to inquire into offenses by a grand jury, and congress not having enabled grand juries to make presentments in one court, to be prosecuted in another, the presentment of an offense, cognizable only in the district court, made in the circuit court, cannot be the legal foundation for a proceeding in the district court, which can only be instituted on the presentment or indictment of a grand jury. United States v. Hill,* 1 Marsh., 156. § 1869. The grand juries in the national courts are limited in their investigations to (1) such matters as may be called to their attention by the court; or (2) may be submitted to their consideration by the district attorney; or (3) such matters as may come to their knowledge

in the course of their investigations into matters brought before them, or from their own observations; or (4) such matters as may come to their knowledge from the disclosures of their associates. Charge to Grand Jury,* 2 Saw., 667.

§ 1870. No private prosecutors should be allowed to intrude themselves into the presence of the grand jury and present accusations. Such information should be made to the district attorney. If the district attorney fails to act, such complaints may be made before a committing magistrate. Ibid.

§ 1871. The grand jury should receive only legal evidence, to the exclusion of mere reports, suspicions and hearsay evidence. Subject to this qualification they may receive any evidence throwing light on the investigation, whether it tends to establish the innocence or guilt of the accused. Ibid.

§ 1872. The grand jury ought not to find an indictment unless, in their judgment, the evidence before them, unexplained and uncontradicted, would warrant a conviction by a petit jury. Ibid.

§ 1873. The grand juries of the federal courts have no authority to inspect the books of the officers of the United States, or to subject the officers themselves to examination respecting the entries in such books. Ibid.

§ 1874. If any letter or communication in print or writing relating to any matter or issue pending before the grand jury, or pertaining to their duties, is sent to them, with intent to influence their action or decision, which has not been ordered to be sent by the court, it is their duty to indict or present the offending person, under the act of congress “to prevent and punish the obstruction of the administration of justice in the courts of the United States." Ibid.

§ 1875. It is the duty of the grand jury to keep their deliberations secret. They are not at liberty to state that they have had a matter under consideration. Ibid.

§ 1876. Duties of district attorney. It is legal and proper for the district attorney to confer with the grand jury during their deliberations whenever he may deem it necessary. Ex parte Crittenden,* Hemp., 176; Charge to Grand Jury,* 19 Int. Rev. Rec., 19. He may properly explain the meaning of laws, lay before the grand jury the evidence in his hands officially, and aid in the examination of witnesses, but he should take no part in the determination of the guilt of an accused party. Charge to Grand Jury,* 19 Int. Rev. Rec., 19.

§ 1877. The uniform practice in proceedings before the grand jury for the district attorney to be attended by his clerk to aid them in the investigation of charges mest be held to have settled the propriety of such practice; but any improper conduct of such clerk would be ground for the interference of the cour. in behalf of the defendant. United States v. Reed,* 2 Blatch., 435.

$ 1878. Testimony of juror.- A grand juror may be permitted to testify as to evidence taken before the grand jury. United States v. Porter,* 2 Cr. C. C., 63.

§ 1879. Indorsing name of informer.- Under an act requiring the grand jury to indorse on the presentment the name of the person on whose information it was found, such indorsement is prima facie evidence that the presentment was made upon the information of a person whose name it bears. Virginia v. Gordon, 1 Cr. C. C., 48.

§ 1889. Qualifications. Where one of the persons appearing as grand juror stated, upon his voir dire, that he had conscientious scruples against indicting persons for a violation of the law of the United States of 1862, prohibiting polygamy, he was held to have been rightly discharged and not sworn on the grand jury. United States v. Reynolds,* 1 Utah Ty, 226. $ 1881. It is no ground for a plea that one of the grand jurors who found the bill had previously expressed an opinion that the defendant was guilty of the offense charged. Such a plea would also be objectionable for not showing that without the vote of the juror objected to no indictment could have been found. United States v. White,* 5 Cr. C. C., 457.

§ 1882. Witnesses for accused.-- The court will not send witnesses to the grand jury on the part of the accused. United States v. Palmer,* 2 Cr. C. C., 11.

§ 1883. A person whose case is under investigation will not be permitted to offer evidence before the grand jury. United States v. Blodgett,* 35 Ga., 336.

§ 1884. A person whose conduct is being inquired into by the grand jury has no right to be heard before them, and they should not admit him into the jury room, or to be examined as a witness in his own behalf. Charge to Grand Jury, Deady, 657.

§ 1885. Insanity of accused. Upon an application by the grand jury to the court for their opinion on whether it was proper to call and examine witnesses to prove the sanity or insanity of the accused, the court instructed them that if in any case before them they should be satisfied by the evidence adduced on the part of the prosecution that the party accused committed the unlawful act with which he is charged, they had no right to send for and examine witnesses to prove mere matter of justification or excuse. United States v. Lawrence,* 4 Cr. C. C., 514.

§ 1886. Refusal of witness to answer. On an inquiry by the grand jury as to the exist ence of an organization whose object is to violate the neutrality laws of the United States, if a witness refuses to answer on the ground that his answers would criminate him, he may be required to give bond to observe the neutrality laws, where the grand jury report that they have reason to believe that such an organization exists. United States v. Quitman,* 2 Am. L. Reg. (O. S.), 645.

§ 1887. Accused persons required to testify.- Each of several persons concerned in a criminal transaction may be compelled to testify before the grand jury concerning that part, if any, which each of the others took in the affair. And this, notwithstanding a provision that a defendant cannot be a witness either against himself or nis co-defendant in a criminal proceeding, and that in the investigation of a charge for the purpose of indictment the grand jury shall receive no other evidence than such as might be given on the trial of the person charged with the crime in question, since there are, in fact or law, no defendants or codefendants to an investigation before a grand jury touching an alleged or supposed commission of crime. United States v. Brown,* 1 Saw., 531.

$1858. Challenges.-- A challenge to the array of the grand jury for irregularities in their designation must be made before the jury is impaneled, and cannot be made after it has been organized and has entered upon the discharge of its duties. A motion to quash the indictment based on the same grounds will also be overruled. United States v. Butler,* 1 Hughes, 457. See 1822-25.

$ 1889. Where the statute of a state, adopted by the statute of the United States, has taken away the right of challenging the array of grand jurors, it has also taken away the right to raise the objection in any form, and any objections founded upon the want of qualifications of grand jurors, either as individuals or as a panel, is within the scope of the statute and unavailing. United States v. Tuska,* 14 Blatch., 5.

$1830. Any person who has been warned by the district attorney, that he will be prosecuted at a particular term, has a right to appear and challenge the grand jury; it is not necessary that he be in prison or on bail. United States v. Blodgett,* 35 Ga., 336.

§ 1891. Challenges will be heard after the jury is organized, if a reasonable excuse is offered for the delay. Ibid.

$1892. The oath to be administered to grand jurors, under section 2 of the act of 1862, as to their participation in the rebellion, will be administered only at the suggestion of the United States attorney; but any person having the right to challenge may urge the same disqualifications, by challenge, under the first section. Ibid.

1893. The court will dispose of such challenge by merely reading the oath to the jurors and permitting those to retire who deem themselves disqualified. Ibid.

§ 1894. A statute which gives the defendant the right to challenge a grand juror after the grand jury has been sworn and charged is merely declaratory of the common law. Such a challenge may be made as a matter of right, and the defendant need not give any reasons why he did not make the challenge before. The People v. Wintermute,* 1 Dak. Ty, 63.

§ 1895. The laws of the state of New York (2 R. S., 724, §§ 27, 28) regulating the right of a prisoner in the challenging of grand jurors are applicable to the federal courts sitting within that state. United States v. Reed,* 2 Blatch., 435.

§1896. A challenge to a grand juror for favor goes to his qualifications as a juror. Ibid. $1897. A challenge to the array of a grand jury goes to the qualification of the panel to sit and act in the given case. Ibid.

$1898. Only persons bound over to appear at the term of court that a grand jury is summoned can challenge either the array or individuals for favor. Persons not bound over have no such rights; their only remedy for the misconduct of jurors is by way of motion addressed to the sound discretion of the court to prevent any prejudice to their rights or interest, and such motion, to be successful, must be founded upon facts implicating the officers summoning the jury. Ibid.

§ 1899. In cases in which the challenge to the array of grand jurors has been abolished, and there has been any improper conduct on the part of the officers drawing, summoning or organizing the grand jury, the court will set all proceedings aside if it appears that such irregularities have resulted or may result to the prejudice of the accused. Ibid.

1990. The difference between a challenge to the array of a grand jury and a motion to set aside panel is, that, in the former case, if the challenge is maintained it is fatal to the whole panel while in the latter case the court has the discretion to adopt any means which will preserve the defendant from prejudice. Ibid.

§ 1901. Witness not sworn.- Where the grand jury who found an indictment received evidence, upon which the indictment was based, given by a witness who was not sworn and who was not entitled to the privileges of a Quaker, the court quashed the bill. United States v. Coolidge, 2 Gall., 363.

*

§ 1902. Charge of court. The court may, in its discretion, give an additional charge to the grand jury, although they do not ask it. When an instruction to the grand jury is asked, either by the accused or the prosecutor, it is a matter of discretion with the court to give the instruction or not; and in exercising that discretion they will take into consideration all the circumstances under which the instruction is prayed, and the extent of the prayer. United States v. Watkins.* 3 Cr. C. C., 441.

§ 1903. May seek advice from the court.- The right of a grand jury to apply to the court with which they are connected, for advice and direction, in aid of the duties they are called upon to discharge, is fully recognized by the law, and its free exercise is encouraged. United States v. McKenzie,* 1 N. Y. Leg. Obs., 371.

§ 1904. Foreman fined for intemperance. In this case the court fined the foreman of the grand jury for intemperance, discharged him, and appointed another foreman in his place. In re Ellis,* Hemp., 10.

§ 1905. Number of grand jurors. It is no ground for quashing the indictment that the bill was found and returned into court by fourteen grand jurors, one of the fifteen composing the grand jury having been absent, fifteen qualified grand jurors having been impaneled, sworn and sent out as the grand inquest, and a greater number than twelve having appeared in court and made the presentment. United States v. Wilson,* 6 McL., 604.

§ 1906. Where a statute provides that the number of grand jurors shall not be less than sixteen nor more than twenty-three, and the court orders twenty-three to be summoned, and twenty-one are returned and impaneled, this number is sufficient under the statute. Mackay v. The People.* 2 Colo. T'y, 13.

§ 1907. Twelve of the grand jury must concur in finding an indictment or presentment; a mere majority will not suffice. Charge to Grand Jury,* 2 Saw., 667.

§ 130s. Since the common law is in force in Utah territory, the number of grand jurors for the federal district courts must be twenty-three, and no act of the territorial legislature can change the rule. The People v. Green,* 1 Utah T'y, 11.

§ 1989. The act of congress of June 23, 1974, entitled an "Act in relation to courts and judicial officers in the territory of Utah," which merely provides the mode of procuring the grand jurors, does not thereby declare the number which shall constitute the grand jury, and therefore is not inconsistent with a law of the territory fixing the number. United States v. Reynolds.* 1 Utah Ty, 226.

§ 1910. Where the grand jury which found an indictment was composed of twenty-three men instead of fifteen, as the law required, its action was held to be void. Ibid.

§ 1911. The number of grand jurors in a territorial district court is governed by the territorial laws and not by the provisions of the statutes of the United States relating to grand jurors in the circuit and district courts of the United States, for the territorial courts, though they have jurisdiction of all cases arising under the constitution and laws of the United States, are not courts of the United States. Reynolds v. United States, 8 Otto, 145 (§§ 854–965).

XXV. JURY.

SUMMARY-Peremptory challenges, § 1912.- How far state laws control in the matter of challenges, § 1913, 1914.- Trovince of the jury on questions of law and fact, § 1915-1919.

§ 1912. Section 819 of the Revised Statutes, declaring that "on the trial of any other felony," except treason or a capital offense, "the defendant shall be entitled to ten and the United States to three peremptory challenges," may operate to give the defendant ten challenges in the following cases: First, where the offense is declared by statute, expressly or impliedly, to be a felony; second, where congress does not define an offense, but simply punishes it by its common law name, and at common law it is a felony; third, where congress adopts a state law as to an offense, and under such law it is a felony. The crime of counterfeiting the coin of the United States does not come within any of these classes, and hence the defendant in such a case is entitled to but three challenges, as provided in that section under the designation of all other offenses. United States v. Coppersmith, §§ 1920-24. See § 1944. § 1913. The act of July 20, 1840 (5 Stats. at Large, 394), enables the courts of the United States to adopt the laws and usages of the state in respect to the challenge of jurors, whether peremptory or for cause, and in cases both civil and criminal, with the exception, in criminal cases, of treason and other crimes, of which the punishment is declared to be death. United States v. Shackleford, §§ 1925-26. See §§ 1944, 1953.

§ 1914. It seems that the right of challenge by the prisoner, recognized by the act of 1790, does not necessarily draw along with it this qualified right, existing at common law, by the government; and that, unless the laws or usages of the state, adopted by rule under the act