In re the Grand Jury for the Special August, 1915, Term

4 D. Haw. 577

• Court: District Court, D. Hawaii
• Decided: September 2, 1915
• Status: Published

Opinion

Clemons, J.

It appearing that the name of Frank B. Freitas, who was drawn in accordance with Judicial Code, sec. 276, for service as a grand juror, was incorrectly stated in the venire as Frank S. Freitas, and the marshal's return of service showing that no such person as Frank S. Freitas can be found, the question arises whether the court may amend the venire and have the intended party summoned.

No obstacle to the amendment is apparent: such amendment is a reasonable practice and could not possibly prejudice any one. Also, it would seem to be authorized by the statute of amendments, Rev. Stat., sec. 954.

No opportunity has been afforded for more than a glance at the authorities. While no decisions directly in point have been found, the propriety of the amendment is suggested by this court’s decision in-In the Matter of the Petit Jury for the October, 1912, Term, ante, p. 105, and by the cases therein cited of Goodwin v. State, 15 So. (Ala.) 571, 573, and Gregory v. State, 37 So. (Ala.) 259, 262.

There is here in the record “something to amend by” (1 Enc. PL & Pr. 509), for the certificate on file herein of the judge and clerk as to the regularity of the drawing of this grand jury shows the true name of the jutor. The clerk’s record of names in the box from which the jurors were drawn, and the slip bearing the juror’s name, which was preserved by the clerk, and the court stenographer’s notes are also available, to confirm such certificate.

Let the venire be amended accordingly, and let the marshal summon the juror to appear forthwith. Pending service of such summons the grand jury will be swo'rn and proceed to business without this juror, who is meantime excused.