Opinion
[Syllabus Material] 18 Cal. 90 at 93.
Original Opinion of April 1861, Reported at: 18 Cal. 90.
JUDGES: At a subsequent term, the case having been argued on the merits, Baldwin, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
BALDWIN, Judge
At a subsequent term, the case having been argued on the merits, Baldwin, J. delivered the opinion of the Court. Field, C. J. concurring.
The bill of exceptions in this case states that it was admitted on the motion for a new trial that the defendant was not allowed to appear in the Court of Sessions, where the indictment was found, and challenge the grand jury, or any member of it, and that he had no opportunity to do so. The defendant was in prison for the crime charged at the time of the finding of the indictment. It seems to be an unquestionable right of the prisoner to challenge the grand jury, or any member, on the impanneling of the jury, when he has been previously held to answer. We see no provision of the statute allowing a challenge after such impanneling, when the prisoner had been previously in the custody of the law. It is not right that the prisoner should be convicted under these circumstances. The effect of the denial of his legal privilege of challenge was to render the grand jury incompetent to sit on his case, just as if he stood before a petit jury and was refused the right to challenge any one or more of the panel. We understand this statement to be made for the purpose of a new trial, and it is sufficient to require a reversal of the order refusing the new trial asked for. But the statement, or the admission contained in it, is not conclusive for any other purpose. If the prisoner were refused the privilege of challenging the grand jury in and by the Court of Sessions, the indictment is insufficient and worthless; it is not, in other words, a legal indictment, because not found by a body competent to act on the case; but to have this effect, the prisoner must have applied for leave or requested permission to appear and challenge the jury. It was not the duty of the Court of Sessions to bring him into Court for the purpose of exercising this privilege. It is the prisoner's business to know when the Court meets, and if he desires to challenge the jury, to apply, if in custody, to the Court, to be brought into Court for that purpose; and if he fails to do this, he waives his privilege of excepting to the panel or any member. Prima facie upon the admission in the record, the prisoner is entitled to a new trial; but if the fact be not as admitted, as has been suggested at the bar, the Court can proceed to try the prisoner again on this indictment. If the fact be as admitted, that the defendant was refused the privilege of challenging the grand jury, the charge had better be resubmitted to another grand jury.
Judgment reversed and cause remanded.