OPINION OP THE COURT
BRATTON; J.
Appellant was convicted of embezzlement of certain personal property which had been placed in his care, custody, and control, the value of which was fixed by the jury at $45.
A plea in abatement to the indictment was interposed, in which appellant set forth and pleaded with considerable detail that the only evidence submitted to the grand jury in its consideration of the charge contained in such indictment was a former indictment returned by a former grand jury charging him with the same offense,; that such former indictment was submitted and exhibited to the grand jury, and upon that, and that alone, the indictment in question was returned; that netihei of the persons whose names were indorsed upon such indictment as witnesses for the state ever in fact appeared before said grand jury. To this plea a demurrer was interposed, upon the ground that such indictment, being regular upon its face, was conclusive, and that the court was without power to review the action of the grand jury for the purpose of determining the sufficiency or existence of the evidence upon which it was returned. This demurrer was sustained, the correctness of which is the first question involved.
It is provided by statute that grand juries shall consider only two kinds of evidence, first, that given by witnesses who are produced and sworn, or, second, legal documentary evidence. They can receive none but legal and the best evidence to the exclusion of hearsay and secondary evidence, and they should return an indictment only when all the evidence, taken together, is such that in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.
“In the investigation of a charge for the purpose of the indictment, the grand jury can receive no other evidence than: First. Such as given by witnesses, produced and sworn before them; or Second. By legal documentary evidence.” Section 3128, Code 1915.
“The grand jury can receive none but legal evidence and the best evidence in degree, to the exclusion of hearsav or secondary evidence.” Section 3129, Code 1915.
“The grand jury ought to find an indictment when all the evidence taken together is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.” Section 3131, Code 1915.
There is a great contrariety of opinion among the courts upon this subject. It is generally conceded that if there is any legal evidence submitted to the grand jury, even though slight, the indictment will be sustained, notwithstanding there may have been illegal and incompetent evidence submitted and considered. Wharton on Cr. Law, section 508; 20 Cyc. 1346; 22 Cyc. 206. The exact question now before us, however, is whether or not the trial court had the power to inquire into the question of whether or not there was anv competent evidence whatever submitted to the grand jury as a basis upon which it returned the indictment in question. To otherwise express the matter, it is whether or not the finding of the grand jury was conclusive upon the court. This is the question which has given rise to much divergence of opinion among the several courts which have had occasion to consider the subject. It has been held that courts have the power, and upon a proper plea asserting that no evidence was submitted to the grand jury, a hearing should be had, and if such fact is proven by competent evidence the plea should be sustained. State v. Logan, 1 Nev. 509; Bryant v. State, 79 Ala. 282; State v. Ivey, 100 N. C. 539, 5 S. E. 407; Royce v. Terr., 5 Okl. 61, 47 Pac. 1083; U. S. v. Farrington et al. (D. C.) 5 Fed. 343; U. S. v. Reed. 2 Blatch. 435, Fed. Cas. No. 16134; State v. Grady, 84 Mo. 224; State v. Faulkner, 185 Mo. 673, 84 S. W. 967; U. S. v. Rubin et al. (D. C.) 218 Fed. 245. Other courts have vigorously maintained that this cannot be done; that grand juries are judicial bodies with inquisitorial powers whose findings are conclusive, and the courts are without power to review their action to determine what evidence, if any, was submitted, whether it was competent or incompetent, legal or otherwise. State v. Dayton, 23 N. J. Law, 49, 53 Am. Dec. 270; Creek v. State, 24 Ind. 151; State v. Fowler, 52 Iowa, 103, 2 N. W. 983; State v. Roberts, 2 Boyce (Del.) 140, 78 Atl. 305; State v. Kelliher, 49 Or. 77, 88 Pac. 867; State v. Boyd 2 Hill (S. C.) 288, 27 Am. Dec. 376; Dockerv v. State, 35 Tex. Cr. R. 487, 34 S. W. 281; Kingsbury v. State, 37 Tex. Cr. R. 259, 39 S. W. 365; Lee v. State. 66 Tex. Cr. R. 567, 148 S. W. 567, 40 L. R. A. (N. S.) 1132; State v. Woodrow et al., 58 W. Va. -, 52 S. E. 545, 2 L. R. A. (N. S.) 862, 112 Am. St. Rep. 1001, 6 Ann. Cas. 180; Lee v. State, 66 Tex. Cr. R. 567, 148 S. W. 567. 40 L. R. A. (N. S.) 1132; Noll v. Dailey, Judge, et al., 72. W. Va. 520, 79 S. E. 668, 47 L. R. A. (N. S.) 1207; Smith & Cavin v. State, 61 Miss. 754. Other decisions discussing the question now under consideration may be found in the note appended to State v. Peterson, 28 L. R. A. 324; U. S. v. Cutler, 5 Utah, 608, 19 Pac. 145.
The cases hereinbefore cited have disposed of the question upon principles, without regard to statutory consideration. The state of New York has statutes identical with ours with regard to the kind and degree of evidence necessary to the return of an indictment of a grand jury and it has been there held that by virtue thereof grand juries are precluded from considering any but legal and the best evidence, and that if. in violation of such statutes, indictments are returned without the kind and degree specified, the court may review the subject and set them aside. People v. Metropolitan Traction Co. (N. Y. Gen. Sess.) 50 N. Y. Supp. 1116; People v. Molineux, 27 Misc. Rep. 60, 57 N. Y. Supp. 936; Id., 27 Misc. Rep. 79, 58 N. Y. Supp. 115; People v. Gresser (Sup.) 124 N. Y. Supp. 581; People v. Ward, 76 Misc. Rep. 323, 134 N. Y. Supp. 330; People v. Walsh, 92 Misc. Rep. 573, 156 N. Y. Supp. 366; People v. Sexton, 187 N. Y. 495, 80 N. E. 396. 116 Am. St. Rep. 621.
The state of California has statutes upon this subject identical with ours, and that state has held contrary to the state of New York. It has been there held that such statutes are merely "for the guidance of the grand jury,” and that the courts have no power to review the evidence submitted before the grand jury for the purpose of determining whether or not the statutes have been complied with. In re Kennedy, 144 Cal. 634, 78 Pac. 34, 67 L. R. A. 406, 103 Am. St. Rep. 117, 1 Ann. Cas. 840; Brobeck v. Superior Court, 152 Cal. 289, 92 Pac. 646; Borello v. Superior Court, 8 Cal. App. 215, 96 Pac. 404; People v. Hatch, 13 Cal. App. 521, 109 Pac. 1097; People v. Panagoit, 25 Cal. App. 158, 143 Pac. 70; People v. Fealy, 33 Cal. App. 605, 165, Pac. 1034. In People v. Panagoit, supra, it is said:
“Defendant further contends that the testimony taken before a grand jury was insufficie-t to s'unno-t an indictment for the reason that in no part of the evidence was it shown, or testified to, that the presentation of the false claim to the insurance company, or to any other person, was made in the city and county of San Francisco, and. for that reason there is nothing to- confer jurisdiction upon the superior court of Alameda county. This contention cannot he maintained. There is no provision in our.law for thus reviewing- the action of a grand jury in finding an indictment.
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OPINION OP THE COURT
BRATTON; J.
Appellant was convicted of embezzlement of certain personal property which had been placed in his care, custody, and control, the value of which was fixed by the jury at $45.
A plea in abatement to the indictment was interposed, in which appellant set forth and pleaded with considerable detail that the only evidence submitted to the grand jury in its consideration of the charge contained in such indictment was a former indictment returned by a former grand jury charging him with the same offense,; that such former indictment was submitted and exhibited to the grand jury, and upon that, and that alone, the indictment in question was returned; that netihei of the persons whose names were indorsed upon such indictment as witnesses for the state ever in fact appeared before said grand jury. To this plea a demurrer was interposed, upon the ground that such indictment, being regular upon its face, was conclusive, and that the court was without power to review the action of the grand jury for the purpose of determining the sufficiency or existence of the evidence upon which it was returned. This demurrer was sustained, the correctness of which is the first question involved.
It is provided by statute that grand juries shall consider only two kinds of evidence, first, that given by witnesses who are produced and sworn, or, second, legal documentary evidence. They can receive none but legal and the best evidence to the exclusion of hearsay and secondary evidence, and they should return an indictment only when all the evidence, taken together, is such that in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.
“In the investigation of a charge for the purpose of the indictment, the grand jury can receive no other evidence than: First. Such as given by witnesses, produced and sworn before them; or Second. By legal documentary evidence.” Section 3128, Code 1915.
“The grand jury can receive none but legal evidence and the best evidence in degree, to the exclusion of hearsav or secondary evidence.” Section 3129, Code 1915.
“The grand jury ought to find an indictment when all the evidence taken together is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.” Section 3131, Code 1915.
There is a great contrariety of opinion among the courts upon this subject. It is generally conceded that if there is any legal evidence submitted to the grand jury, even though slight, the indictment will be sustained, notwithstanding there may have been illegal and incompetent evidence submitted and considered. Wharton on Cr. Law, section 508; 20 Cyc. 1346; 22 Cyc. 206. The exact question now before us, however, is whether or not the trial court had the power to inquire into the question of whether or not there was anv competent evidence whatever submitted to the grand jury as a basis upon which it returned the indictment in question. To otherwise express the matter, it is whether or not the finding of the grand jury was conclusive upon the court. This is the question which has given rise to much divergence of opinion among the several courts which have had occasion to consider the subject. It has been held that courts have the power, and upon a proper plea asserting that no evidence was submitted to the grand jury, a hearing should be had, and if such fact is proven by competent evidence the plea should be sustained. State v. Logan, 1 Nev. 509; Bryant v. State, 79 Ala. 282; State v. Ivey, 100 N. C. 539, 5 S. E. 407; Royce v. Terr., 5 Okl. 61, 47 Pac. 1083; U. S. v. Farrington et al. (D. C.) 5 Fed. 343; U. S. v. Reed. 2 Blatch. 435, Fed. Cas. No. 16134; State v. Grady, 84 Mo. 224; State v. Faulkner, 185 Mo. 673, 84 S. W. 967; U. S. v. Rubin et al. (D. C.) 218 Fed. 245. Other courts have vigorously maintained that this cannot be done; that grand juries are judicial bodies with inquisitorial powers whose findings are conclusive, and the courts are without power to review their action to determine what evidence, if any, was submitted, whether it was competent or incompetent, legal or otherwise. State v. Dayton, 23 N. J. Law, 49, 53 Am. Dec. 270; Creek v. State, 24 Ind. 151; State v. Fowler, 52 Iowa, 103, 2 N. W. 983; State v. Roberts, 2 Boyce (Del.) 140, 78 Atl. 305; State v. Kelliher, 49 Or. 77, 88 Pac. 867; State v. Boyd 2 Hill (S. C.) 288, 27 Am. Dec. 376; Dockerv v. State, 35 Tex. Cr. R. 487, 34 S. W. 281; Kingsbury v. State, 37 Tex. Cr. R. 259, 39 S. W. 365; Lee v. State. 66 Tex. Cr. R. 567, 148 S. W. 567, 40 L. R. A. (N. S.) 1132; State v. Woodrow et al., 58 W. Va. -, 52 S. E. 545, 2 L. R. A. (N. S.) 862, 112 Am. St. Rep. 1001, 6 Ann. Cas. 180; Lee v. State, 66 Tex. Cr. R. 567, 148 S. W. 567. 40 L. R. A. (N. S.) 1132; Noll v. Dailey, Judge, et al., 72. W. Va. 520, 79 S. E. 668, 47 L. R. A. (N. S.) 1207; Smith & Cavin v. State, 61 Miss. 754. Other decisions discussing the question now under consideration may be found in the note appended to State v. Peterson, 28 L. R. A. 324; U. S. v. Cutler, 5 Utah, 608, 19 Pac. 145.
The cases hereinbefore cited have disposed of the question upon principles, without regard to statutory consideration. The state of New York has statutes identical with ours with regard to the kind and degree of evidence necessary to the return of an indictment of a grand jury and it has been there held that by virtue thereof grand juries are precluded from considering any but legal and the best evidence, and that if. in violation of such statutes, indictments are returned without the kind and degree specified, the court may review the subject and set them aside. People v. Metropolitan Traction Co. (N. Y. Gen. Sess.) 50 N. Y. Supp. 1116; People v. Molineux, 27 Misc. Rep. 60, 57 N. Y. Supp. 936; Id., 27 Misc. Rep. 79, 58 N. Y. Supp. 115; People v. Gresser (Sup.) 124 N. Y. Supp. 581; People v. Ward, 76 Misc. Rep. 323, 134 N. Y. Supp. 330; People v. Walsh, 92 Misc. Rep. 573, 156 N. Y. Supp. 366; People v. Sexton, 187 N. Y. 495, 80 N. E. 396. 116 Am. St. Rep. 621.
The state of California has statutes upon this subject identical with ours, and that state has held contrary to the state of New York. It has been there held that such statutes are merely "for the guidance of the grand jury,” and that the courts have no power to review the evidence submitted before the grand jury for the purpose of determining whether or not the statutes have been complied with. In re Kennedy, 144 Cal. 634, 78 Pac. 34, 67 L. R. A. 406, 103 Am. St. Rep. 117, 1 Ann. Cas. 840; Brobeck v. Superior Court, 152 Cal. 289, 92 Pac. 646; Borello v. Superior Court, 8 Cal. App. 215, 96 Pac. 404; People v. Hatch, 13 Cal. App. 521, 109 Pac. 1097; People v. Panagoit, 25 Cal. App. 158, 143 Pac. 70; People v. Fealy, 33 Cal. App. 605, 165, Pac. 1034. In People v. Panagoit, supra, it is said:
“Defendant further contends that the testimony taken before a grand jury was insufficie-t to s'unno-t an indictment for the reason that in no part of the evidence was it shown, or testified to, that the presentation of the false claim to the insurance company, or to any other person, was made in the city and county of San Francisco, and. for that reason there is nothing to- confer jurisdiction upon the superior court of Alameda county. This contention cannot he maintained. There is no provision in our.law for thus reviewing- the action of a grand jury in finding an indictment. The validity of an indictment cannot be attacked upon the mere ground, of insufficiency of evidence to support it. Courts cannot, in the absence of a statute permitting it, inquire into the sufficiency of the evidence upon which the grand jury acted, in order to invalidate an indictment returned' by them.”
And. again in People v. Fealy, supra, this language is used:.
, “But conceding, for the purpose only of the decision of the point now before us, that the testimony so heard was entirely incompetent and in any event entirely insufficient to justify the indictment, yet, under the law, an appellate court cannot review that question to any purpose. It is true that section 9!19. of .the Penal Code provides that the grand jury can receive none but legal evidence, and the best evidence in degree, to the.exclusion of hearsay or secondary, evidence. It is also true that section of 921 of'said Code declares that ‘the grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained, or uncontra-dicted, would, in their judgment, warrant a conviction, which, no doubt, also means that, unless the evidence is such as is thus described, an indictment ought not to be returned, although it has been held that as far as said section was intended to go, was to operate only as a matter of advice to the jury.’ State v. Boyd, 2 Hill (S. C.) 288, 27 Am. Dec. 376: In re Kennedy, 144 Cal. 634, 78 Pac. 34, 67 L. R. A. 406, 103 Am. St. Rep. 117, 1 Ann. Cas. 840. It has, however, repeatedly been held in this state that there is no method provided for revising the action of a grand jury on the ground that there was no sufficient evidence to support it.”
It is obvious that’ there is a mass of authority upon this subject, that the courts are hopelessly in conflict, and it remains for us to adopt the rule which we think to be most sound and which will best subserve the rights of parties litigant. The proceedings of the grand jury throughout legal history have-always been secret. It is a judicial tribunal with inquisitorial powers, and, unless there is some clear statutory authority to do so, we think the courts are without power to review its action to determine whether or not it had sufficient or insufficient, legal or illegal, competent or incompetent evidence upon which to return an indictment. To hold otherwise would permit every person who is indicted to present a plea in abatement charging that no evidence had been submitted to or received by the grand jury upon which such indictment could have been, or was in fact, returned, and then, upon a hearing had upon such plea, introduce the witnesses who appeared before such grand jury and ascertain the facts which were submitted to the grand jury and to which they would likely testify upon the trial, thereby ascertaining the evidence available to the state to which the accused would be called upon to respond, thus injecting into our judicial system a new and highly objectionable procedure. We think the statutes referred to. governing the kind, character, and degree of evidence which should be produced before a grand jury in order to warrant the returning of an indictment, are directory and are for the guidance of the grand jury. To be sure, they should be followed, and members of the grand jury, as well as district attorneys, should endeavor to comply with their provisions, but we ■ think the findings of such grand jury, when made by and through an indictment, duly returned into court, and regular upon its face, are, with respect to the kind and degree of evidence upon which it was returned, conclusive, and that the courts are without power or jurisdiction to inquire -into the .subject and review the testimony submitted to the'grand jury to determine whether or not the required kind or degree of evidence was submitted. It follows that the trial court was correct in sustaining the demurrer.
The next and last question urged upon us is that the verdict is not supported by substantial evidence. We have carefully examined the record and are unable to agree with this contention. The issues of fact were contested, but their determination was for the jury. There is substantial evidence in the record to support the verdict, and under the uniform holding of this court it will not be set aside. State v. Whitener, 25. N. M. 20, 175 Pac. 807; State v. Jaramillo, 25 N. M. 228, 180 Pac. 286; State v. Wilson, 25 N. M. 439, 184 Pac. 531.
■'The judgment will therefore be affirmed; and it is so ordered.
HOLLOMAN, District Judge, concurs.