People v. Gallagher

55 Cal. 462

• Court: California Supreme Court
• Decided: July 1, 1880
• Docket: No. 10,501
• Status: Published

Opinion

By the Court (from the bench) :

The defendant, not having been held to answer before the grand jury, moved, at the proper time, that the indictment be set aside upon the grounds: First, that notice of the drawing of the grand jury was not given as required by law; second, that the drawing was not had in the presence of the officers designated by law, etc.

The motion was denied, and defendant excepted.

The drawing was regular. Verbal notice alone was given by the clerk to the Superior Judge and Sheriff, but inasmuch as the object of the provision requiring notice is only that those officers may be present, and as the case shows that both were, in fact, present when the drawing was had, it is entirely immaterial whether any notice was given them.

Section 215 of the Code of Civil Procedure requires that the clerk shall notify the Sheriff and County Judge. It would seem that it was intended that the Superior Judge should succeed to the duty of the County Judge in respect to the drawing of jurors. (Const. Schedule, § 3.) But even if there be doubt of this, the statute, in respect to the mode of drawing, is not “ inconsistent ” with the Constitution, except in the particular that there is no longer a County Judge. In other respects, it continues in Operation and effect by virtue of section one of the Schedule. It follows that the grand jurors were regularly drawn, the cleric and Sheriff being present.

Judgment and order affirmed.