Page images
PDF
EPUB

§ 1276. Discharge of Grand Jury.

When the business of the grand jury is completed, they must be discharged by the court; but whether the same be completed or not, they are discharged by the final adjournment of the court. [L. 1864; D. Cd. § 42; H. C. § 1241.]

CHAPTER VI.

OF THE POWERS AND DUTIES OF THE GRAND JURY.

§ 1277. Inquiry of Grand Jury into Crimes Committed Within County. The grand jury has power, and it is their duty, to inquire into all crimes committed or triable in the county, and present them to the court, either by presentment or indictment, as provided in this chapter. [L. 1864; D. Cd. § 43; H. C. §1242.]

If for any reason an indictment is defective or insufficient, it is the duty of the grand jury to return another, unless some proceeding has been had on such former in

dictment which amounts to a bar to a further prosecution: State v. Reinhart, 26 Or. 473, 38 Pac. 822.

§ 1278. Defendant not Held to Answer May be Indicted.

The grand jury may indict or present a person for a crime, when they believe him guilty thereof, whether such person has been held to answer for such crime or not. [L. 1864; D. Cd. § 44; H. C. § 1243.]

§ 1279. Grand Jury May Present for Opinion of Court.

When the grand jury are in doubt whether the facts, as shown by the evidence before them, constitute a crime in law, or whether the same has ceased to be punishable by reason of lapse of time or a former acquittal or conviction, they may make a presentment of the facts to the court, without mentioning the names of individuals, and ask the court to instruct them concerning the law arising thereon. [L. 1864; D. Cd. § 45; H. C. $1244.]

§ 1280. Presentment, Duty of Court in Relation Thereto.

A presentment can not be found and presented to the court except as provided in section 1279, and when so found and presented, the court shall give such instructions to the grand jury concerning the law of the case as it may think proper and necessary. [L. 1864; D. Cd. § 46; H. C. § 1245.]

§ 1281. Foreman May Administer Oaths to Witnesses.

The foreman of the grand jury may administer an oath to any witness appearing before them. [L. 1864; D. Cd. § 47; H. C. 1246.]

§ 1282. Grand Jury to Hear Legal Evidence.

In the investigation of a charge for the purpose of indictment, the

grand jury shall receive no other evidence than such as might be given on the trial of the person charged with the crime in question. [L. 1864; D. Cd. § 48; H. C. § 1247.]

$ 1283. May Order Explanatory Evidence to be Produced.

The grand jury is not bound to hear evidence for the defendant, but it is their duty to weigh all the evidence submitted to them, and when they have reason to believe that other evidence within their reach will explain away the charge, they should order such evidence to be produced, and for that purpose may require the district attorney to issue process for the witnesses. [L. 1864; D. Cd. § 49; H. C. § 1248.]

§ 1284. Evidence, What Will Warrant Indictment.

The grand jury ought to find an indictment when all the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury. [L. 1864; D. Cd. $50; H. C. § 1249.]

$ 1285. Grand Juror Must Disclose his Knowledge of Crime.

If an individual grand juror know, or have reason to believe, that a crime has been committed, which is triable in the county, he must disclose the same to his fellow-jurors, who must thereupon investigate the same. [L. 1864; D. Cd. § 51; H. C. § 1250.]

§ 1286. May Inquire into Conditions of Prisons and Offices.

In addition to the power and duty prescribed by section 1277, the grand jury has power, and it is their duty, to inquire,

1. Into the condition and management of every public prison in the county; and,

2. Into the condition and the management of the offices pertaining to the courts of justice in the county. [L. 1864; D. Cd. § 52; H. C. § 1251.]

$1287. To Have Access to Prisons and Records.

They shall be entitled to free access at all reasonable times to the prisons and offices mentioned in section 1286, and also to the examination, without charge, of all public records in the county. [L. 1864; D. Cd. § 53; H. C. § 1252.]

1288. District Attorney to Present Indictment, When.

The district attorney must submit an indictment to the grand jury, and cause the evidence in support thereof to be brought before them, in the case of every person held to answer a criminal charge in the court wherein such jury is formed. [L. 1864; D. Cd. § 54; H. C. § 1253.]

§ 1289. District Attorney May Submit an Indictment in any Case.

The district attorney may submit an indictment to the grand jury, in

any case, when he has good reason to believe that a crime has been committed which is triable within the county. [L. 1864; D. Cd. § 55; H. C. § 1254.]

[ocr errors]

Who May be Present,

§ 1290. District Attorney Must Attend Sittings The district attorney, when required by the grand jury, must prepare indictments or presentments for them, and attend their sittings to advise them in relation to their duties or to examine witnesses in their presence; but no person other than the district attorney, or a witness actually under examination, can be allowed to be present during the sittings of the grand jury, nor either such attorney or witness when the grand jury are deliberating or voting upon a matter before them. [L. 1864; D. Cd. § 56; H. C. $1255.]

It is improper, although authorized by a district attorney, for a stranger to be present during the sitting of the grand jury, for the purpose of aiding them in the examination of witnesses, but such irregularity, after trial and verdict and without any suggestion of injustice or unfairness to the prisoner, is not sufficient ground for reversal: State v. Justus, 11 Or. 180, 8 Pac. 337. 50 Am. Rep. 470.

The presence of an attorney engaged to assist the district attorney in the examination before the grand jury is not cause for setting aside the indictment, nor for reversal of the judgment: State v. Whitney, 7 Or. 386.

The testimony of a grand juror, as to what the defendant testified to before the grand jury, if such evidence is otherwise competent, may be admitted, if, in the opinion of the trial court, the ends of justice require it: State v. Moran, 15 Or. 274, 14 Pac. 419.

A member of the grand jury may be called on the trial to show that the defendant has made statements inconsistent with her present testimony, after the proper foundation has been laid for admitting evidence of such contradictory statements: State v. Brown, 28 Or. 161, 41 Pac. 1042.

§ 1291. Grand Juror Making Statement Must be Sworn.

An indictment or presentment must not be found upon the statement of a grand juror, unless he be sworn and examined as a witness. [L. 1864; D. Cd. § 57; H. C. § 1256.]

§ 1292. When Grand Juror Bound to Disclose Testimony of Witness.

A member of a grand jury may be required by any court to disclose the testimony of a witness examined before such grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before such grand jury by any person, upon a charge against such person for perjury, or upon his trial therefor. [L. 1864; D. Cd. § 58; H. C. § 1257.]

§ 1293. Immunity of Grand Jury - For What May be Questioned.

A grand juror can not be questioned for anything he may say or any vote he may give, while acting as such, in relation to any matter legally pending before the grand jury, except for a perjury, of which he may have been guilty in giving testimony before such jury. [L. 1864; D. Cd. § 59; H. C. § 1258.]

CHAP. VII.] OF FINDING AND PRESENTATION OF INDICTMENT.

541

CHAPTER VII.

OF THE FINDING AND PRESENTATION OF THE INDICTMENT.

§ 1294. Five Grand Jurors Must Concur- Indictment, how Indorsed.

An indictment can not be found without the concurrence of at least five grand jurors; and when so found it must be indorsed "a true bill," and such indorsement signed by the foreman of the jury. [L. 1864; D. Cd. § 60; H. C. § 1259.]

The objection that an indictment was not found and presented by the grand jury, as provided by this chapter, must be taken advantage of by motion to set aside the indictment, and if not so made, the defendant is precluded from afterwards taking

the objection: State v. Reinhart, 26 Or. 471,
38 Pac. 822.

An indictment found by a grand jury
formed under an unconstitutional law is in-
valid, and a conviction thereon must be
reversed: State v. Lawrence, 12 Or. 297,
7 Pac. 116.

§ 1295. Names of Witnesses Must be Inserted-Volunteer Witness, how Designated.

When an indictment is found, the names of the witnesses examined before the grand jury must be inserted at the foot of the indictment, or indorsed thereon, before it is presented to the court; and if the indictment be for a misdemeanor only, and any witness has voluntarily appeared before the grand jury to complain of the defendant, his name must be marked as private prosecutor. [L. 1864; D. Cd. § 61; H. C. § 1260.]

The objection that the names of witnesses are not indorsed on the indictment must be taken before the defendant pleads, or it is waived: 1350, post.

The prosecution can not be deprived of the benefit of the testimony of a witness at the trial who has been examined before the grand jury, but whose name by inadvertence or mistake has not been inserted at the foot or indorsed upon the indictment; or, under like circumstances, omitted from the copy delivered to the defendant on his arraignment, where he has not been misled or prejudiced thereby with respect to his defense: State v. Anderson, 10 Or. 452.

Where an indictment is set aside and the cases resubmitted to the same grand jury, a subsequent indictment found under such

[blocks in formation]

resubmission must contain the names of
the witnesses examined when the first in-
dictment was found, as well as those exam-
ined when the second one was found: State
v. Andrews, 35 Or. 390, 58 Pac. 765.

The objection that the witnesses' names
are not all indorsed on the indictment may
be taken at any time before plea; and if
upon the arraignment the defendant be al-
lowed a day to plead or answer the indict-
ment, he may before otherwise pleading
thereto move to set it aside in answer to
the arraignment: State v. Pool, 20 Or. 150,
25 Pac. 375; but if a demurrer is filed and
overruled, it is then too late to move to set
aside the indictment on this ground: State
v. Smith, 33 Or. 485, 55 Pac. 534.

In What Cases a Public Record.

An indictment, when found by the grand jury, as prescribed in sections 1294 and 1295, must be presented by their foreman, in their presence, and filed with the clerk, and remain in his office as a public record; but if the defendant has not been held to answer the charge, neither the indictment nor any order or process in relation thereto must be inspected by any person other than the judge of the court or an officer thereof in the discharge. of a duty concerning the same, until after the arrest of the defendant. [L. 1864; D. Cd. § 62 ; H. C. § 1261.]

$1297. Disclosure of Facts by Grand Juror or Officer, Prohibited.

No grand juror or officer of the court must disclose any fact concern

J

ing such indictment while it is not subject to public inspection; and a violation of this section, or the prohibitions of section 1296, is punishable as a contempt. [L. 1864; D. Cd. § 63; H. C. § 1262.]

§ 1298. Proceeding, When Indictment not Found True Bill.

When a person has been held to answer a criminal charge, and the indictment in relation thereto is not found "a true bill," as provided in section 1294, it must be indorsed "not a true bill," which indorsement must be signed by the foreman, and presented to the court and filed with the clerk, and remain a public record; but in the case of an indictment not found "a true bill," against a person not so held, the same, together with the minutes of the evidence in relation thereto, must be destroyed by the grand jury. [L. 1864; D. Cd. § 64; H. C. § 1263.]

§ 1299. Return "Not a True Bill" Bars Further Proceedings.

When an indictment, indorsed "not a true bill," has been presented in court and filed, the effect thereof is to dismiss the charge; and the same can not be again submitted to or inquired of by the grand jury, unless the court so order. [L. 1864; D. Cd. § 65; H. C. § 1264.]

§ 1300. Presentment, how Made.

A presentment is made to the court, by the foreman, in the presence of the grand jury, and with the concurrence of five of their number; but being a mere informal statement of facts, for the purpose of obtaining the advice of the court as to the law arising thereon, is not to be filed in court or preserved beyond the sitting of the grand jury. [L. 1864; D. Cd. § 66; H. C. § 1265.]

CHAPTER VIII.

OF FORMS OF CRIMINAL ACTIONS AND REQUIREMENTS OF

INDICTMENTS.

§ 1301. Forms of Pleadings in Criminal Actions.

All the forms of pleading in criminal actions heretofore existing are abolished; and hereafter, the forms of pleading, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this code. [L. 1864; D. Cd. § 67; H. C. § 1266.]

The intention of this section is not to abolish or dispense with any of the essential requirements of an indictment, as sanctioned by the wisdom and experience of the past and determined by the well established rules of sound reasoning. None of the substantial elements of a good indictment as tested by the long established principles of

criminal jurisprudence are ignored by our statutes: State v. Dougherty, 4 Or. 200.

As pleadings in criminal actions are governed alone by statute, and the code nowhere requires the state to reply to a plea of former conviction or acquittal, failure to deny an allegation in the defendant's plea to that effect is not a confession thereof: State v. Howe, 27 Or. 145, 44 Pac. 672.

§ 1302. Indictment, First Pleading on Part of State.

The first pleading on the part of the state is the indictment. [L. 1864; D. Cd. § 68; H. C. § 1267.]

« PreviousContinue »