cannot act impartially and without prejudice to the substantial rights of the party challenging.

§ 240. The challenges mentioned in the last three sections may be oral, and must be entered upon the minutes, and tried by the court, in the same manner as challenges in the case of a trial jury which are triable by the court.

241. The court must allow or disallow the challenge, and the clerk must enter its decision upon the minutes.

§ 242. If a challenge to the panel be allowed, the grand jury are prohibited from inquiring into the charge against the defendant by whom the challenge was interposed. If they should, notwithstanding, do so, and find an indictment against him, the court must direct it to be set aside.

§ 243. If a challenge to an individual grand juror be allowed, he can not be present at, or take part in the consideration of the charge against the defendant who interposed the challenge, or the deliberations of the grand jury thereon.

§ 244. The grand jury must inform the court of a violation of the last section, and it is punishable by the court as a contempt.

66

By 2 R. S., 3d. ed., 810, sec. 27, 28, it is provided, that a person held to answer to any criminal charge, may object to the competency of any one summoned to serve as a grand

juror, before he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecution, and has been subpoenaed or been bound in a recognizance as such; and if such objection be established, the person so summoned shall be set aside; and that no challenge to the array of grand jurors, or to any person summoned to serve as a grand juror, shall be allowed in any other cases than such as are above specified."

The sections proposed are intended as a substitute for these provisions. They are much more full, and the principles which they embody seem just and reasonable. They are, that the panel may be set aside, where such irregularities have occurred in drawing the grand jury, as depart from the substantial requirements of the law, and as, in their own nature, tend to the prejudice of the defendant; and that the challenges to individual grand jurors extend to cases of personal disqualification, and to the case of the prosecutor, or of one on whose part, such a state of mind exists, as satisfies the court, in the exercise of a sound discretion, that he cannot act impartially, and without prejudice to the substantial rights of the party challenging.

§ 245. From the persons summoned to serve as grand jurors, and appearing, the court must appoint a foreman. The court must also appoint a foreman, when a person already appointed is discharged or excused, before the grand jury are dismissed.

The first part of this section is taken from 2 R. S., 810, 3d. ed., sec. 26; the remaining portion is intended to provide for a case of frequent occurrence, but for which no provision is now made.

§ 246. The following oath must be administered to the foreman of the grand jury: "You, as foreman of this grand jury, shall diligently inquire and true presentment make, of all public offences against the people of this state, committed or triable within this county, [or in a city court, "within this city,"] of which

you shall have or can obtain legal evidence: you shall present no person through malice, hatred or ill will, nor leave any unpresented through fear, favor, or affection, or for any reward, or the promise or hope thereof; but in all your presentments or indictments, you shall present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding. So help you God!"

§ 247. The following oath must be immediately thereupon administered to the other grand jurors present: "The same oath which your foreman has now taken before you on his part, you and each of you shall well and truly observe on your part. So help you God!"

§ 248. If,after the foreman is sworn, any grand juror appear, and be admitted as such, the oath, as prescribed in section 246, must be administered to him, commencing, "You, as one of this grand jury," and so on, to the end.

The oath prescribed in the last three sections, is substantially the same as at present It puts, however, in plainer language, the precise duties of the grand jury.

§ 249. The grand jury being impanelled and sworn, must be charged by the court. In doing so, the court must read to them the provisions of this code, from section 253 to section 269, both inclusive, and must give them such information. as it may deem proper, as to the nature of their duties, and any charges for public offences returned to the court, or likely to come before [CRIM. CODE. 8

the grand jury. The court need not, however, charge them respecting violations of a particular statute.

This section makes it the duty of the court to charge the grand jury as to their duties, as those duties are defined in the code. It also dispenses with the necessity of charging them as to the violation of particular statutes; a portion of the charge which is uniformly regarded as a mere formality, and which scarcely ever in practice leads to an indictment for the offences referred to, although they are daily and openly committed.

§ 250. The grand jury must then retire to a private room, and inquire into the offences cognizable by them.

Declaratory of the existing practice.

§ 251. The grand jury must appoint one of their number as clerk, who must preserve minutes of their proceedings, (except of the votes of the individual members on a presentment or indictment,) and of the evidence given before them.

Taken from 2 R. S., 3d. ed, 811, sec. 30.

§ 252. The grand jury, on the completion of the business before them, must be discharged by the court; but whether the business be completed or not, they are discharged by the final adjournment of the court.

CHAPTER III

POWERS AND DUTIES OF THE GRAND JURY.

SECTION 253. Power of grand jury to inquire into all public offences committed or triable in the county, and to proceed by presentment or indict

ment.

254. When defendant has been held to answer, grand jury may indict.

255. In all other cases, they can proceed by presentment only.

259, 260.

Evidence receivable before the grand jury.

261. Grand jury not bound to hear evidence for the defendant, but may

order explanatory evidence to be produced.

262. Degree of evidence, to warrant an indictment.

263. Grand jurors must declare their knowledge as to commission of a public offence.

264. Grand ju ́y must inquire as to persons imprisoned on crimina charges and not indicted; the condition of public prisons; and the misconduct of public officers.

265. Grand jury entitled to access to public prisons, and to examine public records.

266. When and from whom they may ask advice, and who may be present during their sessions

267. Secrets of the grand jury, to be kept.

208. Grand jury, when bound to disclose the testimony of a witness. 269. Grand juror not to be questioned, for his conduct as such.

In approaching the subject of the powers and duties of the grand jury, the Commissioners have felt much embarrassment, and have, therefore, devoted to it, the patient and laborious consideration which it demanded. The value of this institution is at the present day variously regarded. By some, it is deemed of the highest importance, as furnishing, by reason of its secrecy, a most valuable aid in the efficient detection and punishment of crime; while, by others, it has been regarded, by reason of that very secrecy, as subversive of the rights, and destructive of the liberty of the citizen. Upon which side the balance of the argument preponderates, it is not for the Commissioners to say, or even to suggest. One thing, however, is certain; that the preservation of its usefulness, like that of every other department in the administration of the laws, depends upon a clear and well understood definition of its powers. To leave these vague and unlimited, is to make the institution itself an object of jealousy and alarm. It is retained and perpetuated by the constitution, and it is not the