People v. Earnest

45 Cal. 29

Opinion

By the Court:

The statute (Hitt,, Secs. 3918, 3919) requires that a copy of the order of the. Court for the summoning of a Grand Jury should be delivered to the Sheriff and that it shall be the duty of that officer to summon the Grand Jury “ upon the receipt of the order,” etc. In this case the only order delivered to the Sheriff was an order to summon twenty-four persons to serve as trial jurors. This trial jury was subsequently impaneled by the Court as a Grand Jury and found the indictment upon which the prisoner was convicted, and his motion to set aside the indictment, duly made on that ground, was denied. Had a subpoena been issued to summon twenty-four witnesses in the case there would have been just as much authority in the Court to impanel them as a Grand Jury as to impanel this trial jury as a Grand Jury.

Judgment reversed and cause remanded, with directions to set aside the indictment and-for such further proceedings as may be proper.