ant may, after verdict, on error, avail himself of the objection that no precept had been issued for summoning the grand jury.1

§ 2. PROCLAMATION BY CRIER OF THE COURT.

Upon the convening of the court at the time and place mentioned for its session, the first business done is the proclamation by the crier of the court. The county judge of each of the counties in this State is authorized to appoint, from time to time as shall be necessary, a suitable person to discharge the duties of crier of the courts of record to be held in and for said county; such person to be paid the same compensation as justices of the court of sessions are paid, and to hold his office during the pleasure of said county judge.2

The proclamation is made as follows:

"Hear ye, hear ye, hear ye. All manner of persons that have any business to do at this circuit court and court of oyer and terminer (or court of sessions), held in and for the county of Rensselaer, let them draw near and give their attendance and they shall be heard.

"Sheriff of the county of Rensselaer, return the writs and precepts to you directed, and delivered and returnable here this day, that the court may proceed thereon.

"All justices of the peace, coroners, sheriffs and other officers who have taken any recognizances, examinations or other matters, return the same to the court here that they may proceed thereon.

"Hear ye, hear ye, hear ye. All manner of persons who are bound by recognizances to prosecute or prefer any bill of indictment against any prisoner or other person let them come forth and prosecute, or they will forfeit their recognizances."

§ 3. CALENDAR OF PERSONS CONFINED IN JAIL TO BE FURNISHED

COURTS OF OYER AND TERMINER AND OF SESSIONS.

It is the duty of the keeper of every county prison or common jail to present to every court of oyer and terminer and to every court of sessions held in his county, at the opening of such court, a calendar, stating:

1. The name of every prisoner then detained in such prison.

'McGuire v. Peo., 1 Park., 148; Peo. v. Robinson, 1 Park., 235.

'Laws 1855, ch. 530.

2. The time when such prisoner was committed, and by virtue of what process or precept; and,

3. The cause of the detention of every such person.1

It is generally customary for the sheriff of the county to furnish duplicates of the above mentioned calender or jail list, as it is usually called; one of which is for the use of the court, and the other for the convenience of the district attorney and grand jury. Although not required by the statute, it is usual for the sheriff to attach to the duplicate list furnished for the grand jury, the names of the officers making the arrest, in order that they may know what officer has charge of the case and to whom to apply for information concerning the witnesses.

The common jail in the several counties of the State are kept by the sheriff's of the counties in which they are respectively situated, and are used as prisons, for the detention of persons duly committed, in order to secure their attendance as witnesses in any criminal case; for the detention of persons charged with crime and committed for trial; for the confinement of persons duly committed for any contempt or upon civil process, and for the confinement of persons sentenced to imprisonment therein upon conviction for any offence.2

§ 4. EMPANNELLING THE GRAND JURY.

After the proclamation made by the clerk, the next business usually transacted in courts of oyer and terminer, and courts of sessions is the empannelling of the grand jury. This is done by the clerk calling the names of the jurors separately from the original panel of the drawing, certified to by the proper officers, and to which has been attached the return of the sheriff, showing what jurors have been summoned to attend the court. As the names of the jurors who have been summoned are called, they answer to their names, and step forward and take their places in the seats reserved for them. Before the calling of the jurors' names by the clerk, the following proclamation is made by the crier of the court:

"You good men who are here, returned to inquire for the people of the State of New York, for the body of the county of

Rensselaer, answer to your names, every one at the first call, and save your fines."

§ 5. OF THE GRAND JURY.

The Constitution of the United States provides that no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia in actual service. And in our State Constitution there is a similar provision, except in cases of impeachment and in cases of militia when in actual service, and the land and naval forces in time of war, or which the State may keep, with the consent of Congress, in time of peace, and in cases of petit larceny under the regulation of the Legislature. The number of grand jurors sworn upon any panel, shall not be more than twenty-three, and not less than sixteen persons. The grand jury itself is of Saxon origin, and is found accurately described as early as the laws of King Ethelred. In case it becomes desirable to prosecute a person for the commission of a crime in a court of record, it becomes necessary that the preliminary steps should be taken by a proper presentment of the case to a grand jury, and have an indictment therefor presented by them to the court, upon which the accused is arraigned and tried, as will be hereinafter spoken of.

And as a preliminary action to such presentment and indictment, the accused may be arrested at any time upon a warrant charging him with the offence. And he may have had an examination upon such arrest, and been discharged, or he may have been committed to jail to await the action of the grand jury, or he may have been let to bail after such arrest, to await the action of the grand jury, and for his appearance at court to answer any indictment they may find against him, or no proceeding whatever may have been instituted against him prior to the summoning and appearance of the witnesses before the grand jury. In all of these cases the grand jury have a right to hear and examine witnesses in relation to the offence charged to have been commit

U. S. Const., Art. 5.

Const. N. Y., Art. 1, § 6.

2 R. S., 724, § 26.

4 Blac. Com., 302; Wilk. L. L., Angl. Saxon, 117.

Ante.

ted, and if, in their opinion, the evidence warrants it, to find a true bill of indictment against the guilty person, or if there be not sufficient evidence, then to ignore the bill and dismiss the case from further consideration.

The qualifications of the grand jurors, and the cases in which persons are to be discharged and excused from the performance of such jury duty, are the same as those of petit jurors. They are to be such persons as the supervisors know or have good reason to believe are possessed of the qualifications by law required of persons to serve as jurors for the trial of issues of fact, and are of approved integrity, fair character, sound judgment, and well informed. This question will be found treated of in subsequent pages.1 But it is not necessary that they should be freeholders.2

3

§ 6. OF THE RETURN AND SUMMONING OF THE GRAND JURORS. The manner of selecting and returning grand jurors is pointed out by the statute. In the city and county of New York, the mayor, recorder and aldermen prepare a list of persons to serve as grand jurors. In the county of Kings the supervisors of that county prepare a list of grand jurors from the names of persons qualified as jurors, to be provided by the commissioner of jurors in that county, and in the other counties of the State the supervisors of the county prepare the list of persons to serve as grand jurors in their respective counties. The names of such persons are placed upon ballots kept in a box in the office of the county clerk. The manner of drawing the names of persons who are to serve as grand jurors, and the summoning of such persons to attend the courts for which they are drawn, will be found pointed out by the provisions of the Revised Statutes."

5

If any offence shall be committed during the sitting of any court of oyer and terminer or court of sessions, after the grand jury shall have been discharged, such court may, in its discretion, by an order to be entered in its minutes, direct the sheriff to

' Vide post. 2 R. S., 722, § 14; Id., 720, §§ 3-4.

Peo. v. Jewett, 6 Wend., 388.

'2 R. S., 720, § 2.

Laws 1858, ch. 322, § 30.

2 R. S., 720, § 1.

• Vide 5th ed., R. S., vol. 3, p. 1012, et seq.; Laws 1847, ch. 495, p. 734; Laws 1858, ch. 322, p. 517.

summon another grand jury, and the sheriff shall accordingly forthwith summon such other jury from the inhabitants of the county qualified to serve as petit jurors, who shall be returned and sworn, and shall proceed in the same manner in all respects as provided by law in respect to other grand juries.1.

It was held not to be a sufficient reason for quashing an indictment, that the list of persons from which the grand jury which found it was drawn, contained, as originally preferred by the board of supervisors, the names of only two hundred and ninetynine persons, instead of three hundred, as required by statute.2

§ 7. OF HEARING EXCUSES BY THE GRAND JURORS.

The court then usually inquires if any of the grand jurors have excuses to make, and proceeds to hear and determine upon the validity of the excuses offered. The juror presenting himself to offer an excuse, is first sworn by the clerk.

The following oath is administered to the juror upon his application for a discharge:

"You shall true answers make to such questions as shall be put to you touching your application to be discharged from attendance as a juror at this court, so help you God."

The court may discharge any person from serving as a grand juror in the same cases in which petit jurors may by law be discharged.3

When any grand juror shall have attended and performed his duty as such at any court, the ballot containing his name shall be destroyed, and he shall not be again required to serve as a grand juror during the year for which his name was returned.1

And when any person drawn as a grand juror shall be discharged by the court or excused from attending on account of any disqualification, or for any other cause not being of a temporary nature, the ballot containing his name shall be destroyed.5

§ 8. OF CHALLENGES TO THE GRAND JURORS.

In this State no challenge to the array of grand jurors or to any