time discharge the panel and order another to be summoned, for one or more of the following causes: 1. That the requisite number of ballots was not drawn from the grand jury box of the county; 2. That notice of the drawing of the grand jury was not given. 3. That the drawing was not had, in the presence of the officers designated by law; and 4. That the drawing was not had, at least fourteen days before the court. Code Crim. Pro., § 238. 64 N. Y. 483; 96 id. 149; 30 Hun, 98, 103, 112, 114, 496; 1 Crim. Rep. 204, 244, 318, 430. 41 Causes for challenge. A challenge to an individual grand juror may be interposed for one or more of the following causes and for these only: 1. That he is a minor. 2. That he is an alien. 3. That he is insane. 4. That he is the prosecutor upon a charge against the defendant. 5. That he is a witness for either party, if the court is satisfied in the exercise of a sound discretion that he cannot act impartially and without prejudice to the substantial rights of the party challenging. 6. That a state of mind exists on his part in reference to the case or to either party, which satisfies the court, in the exercise of a sound discretion that he can not act impartially and without prejudice to the substantial rights of the party challenging. Code Crim. Pro., § 239, as am'd L. 1892, c. 279, § 4. 30 Hun, 98, 102, 114; 96 N. Y. 149, 158; 1 Crim. Rep. 217. 42 Taking and trying challenges. Challenges, to individual grand jurors, may be oral, and must be entered upon the minutes, and tried by the court, in the same manner as challenges, in the case of a trial jury. Code Crim. Pro., § 240. 19 Johns. 121. disallow the challenge, Code Crim. Pro., § 241. 43 Decision of challenge. The court must allow or and the clerk must enter its decision upon the minutes. 44 Effect of allowing same. If a challenge to an individual grand juror be allowed for any of the causes mentioned in subdivisions one, two or three of section two hundred and thirty-nine, he must be forthwith discharged from the grand jury. If such challenge be allowed for any of the causes mentioned in subdivisions four, five or six of section two hundred and thirty-nine, the juror challenged cannot be present at or take part in the consideration of the charge against the defendant mentioned in or who interposed the challenge, or in the deliberations or vote of the grand jury thereon. Code Crim. Pro., § 242, as am'd L. 1892, c. 279, § 5. 2 Crim. Rep. 78; 31 Hun, 374. 45 Violation of last section. The grand jury must inform the court of a violation of the last section, and the same is punishable by the court as a contempt. Code Crim. Pro., § 243. 3 How. Pr. N. S. 413, aff'g 36 Hun, 277; 2 Crim. Rep. 78; 3 id. 216; 31 Hun, 374. 46 Appointment of foreman. From the persons summoned to serve as grand jurors, and appearing, the court must appoint a foreman. The court must also appoint a foreman, when a person already appointed is discharged or excused, before the grand jury are dismissed. Code Crim. Pro., § 244. 101 N. Y. 245, 251. 47 Oath of the foreman. The following oath must be administered to the foreman of the grand jury: "You, as foreman of this grand jury, shall diligently inquire and true presentment make, of all such matters and things as shall be given you in charge; the counsel of the people of this state, your fellows' and your own you shall keep secret; you shall present no person from envy, hatred or malice; nor shall you leave any one unpresented through fear, favor, affection or reward or hope thereof; but you shall present all things truly as they come to your knowledge, according to the best of your understanding. So help you God. Code Crim. Pro., § 245. 1 Crim. Rep. 214, 312. 48 Oath of jurors. The following oath must be immediately thereupon administered to the other grand jurors present: "The same oath which your foreman has now taken before you on his part, you and each of you shall well and truly observe on your part. So help you God!" Code Crim. Pro., § 246. 49 Same, after others have sworn. If after the foreman and the grand jurors. then present are sworn, any other grand juror appear, and be admitted as such, the oath, as prescribed in section 245, must be administered to him commencing, "You as one of this grand jury," and so on, to the end. Code Crim. Pro., § 247. 50 Charge of court to grand jury. The grand jury being impaneled and sworn, must be charged by the court. In doing so the court must read to them the provisions of this code from section two hundred and fifty-two to section two hundred and sixty-seven,* both inclusive, or give them a copy thereof, and must give them such information as it may deem proper as to the nature of their duties, and any charges and crimes returned to the court or likely to come before the grand jury. The court need not, however, charge them respecting violations of a particular statute, excepting when so requested by the district-attorney. Code Crim. Pro., § 248, as am'd L. 1892, c. 279, § 6. 51 Retirement of grand jury. The grand jury must then retire to a private room and inquire into the offenses cognizable by them. Code Crim. Pro., § 249. 52 Appointment and duties of clerk. The grand jury must appoint one of their number as clerk, who is to preserve minutes of their proceedings (except of the votes of the individual members on a presentment or indictment), and of the evidence given before them. Code Crim. Pro., § 250. 53 Discharge of grand jury. The grand jury, on the completion of the business before them, must be discharged by the court; but whether the business be completed or not, they are discharged by the final adjournment of the court. Code Crim. Pro., § 251. 11 Civ. Pro. 172, 184. 54 Powers and duties. The grand jury has power, and it is their duty, to inquire into all crimes committed or triable in the county, and to present them to the court. Code Crim. Pro., § 252. 2 Park. 566; 3 id. 114, 600; 4 id. 222; 5 id. 393; 5 N. Y. Supp. 20; 6 Crim. Rep. 191. 55 Oaths to witnesses. The foreman may administer an oath, to any witness appearing before the grand jury. Code Crim. Pro., § 253. Code 56 Indictment defined. An indictment is an accusation in writing, presented by a grand jury to a competent court, charging a person with a crime. Crim. Pro., § 254. 8 N. Y. Cr. R. 269; 106 N. Y. 502, 509; 59 Hun, 51, 58; 79 id. 48; 35 N. Y. St. R. 155; 38 id. 315; 61 id. 198; 6 N. Y. Supp. 611, 807; 12 id. 692; 14 id. 839. 57 Evidence before grand jury. In the investigation of a charge, for the purpose of indictment, the grand jury can receive no other evidence than, 1. Such as is given by witnesses produced and sworn before them, or furnished by legal documentary evidence; or 2. The deposition of a witness, in the cases mentioned in the third subdivision of section 8.† Code Crim. Pro., § 255. 2 N. Y. Supp. 716; 15 id. 530; 6 N. Y. Cr. R. 144. 58 Legal evidence only. Code Crim. Pro., § 256. The grand jury can receive none but legal evidence. 60 How. Pr. 17; 65 id. 177; 4 N. Y. Cr. R. 329, 334; 6 id. 144; 18 Abb. N. C. 101, Y. Supp. 416; 15 id. 530. * This subject, §§ 54–69. + Crimes, § 45. 59 Evidence for defendant. 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. Code Crim. Pro., § 257. 5 N. Y. Cr. R. 2; 18 Abb. N. C. 97. 60 Indictment, when to be found. 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. Code Crim. Pro., § 258. 10 How. Pr. 567; 2 N. Y. Supp. 416; 15 id. 530; 6 N. Y. Cr. R. 144. 61 Crime within knowledge of grand jury. If a member of the grand jury know, or have reason to believe, that a crime has been committed, which is triable in the county, he must declare the same to his fellow jurors, who must thereupon investigate the same. Code Crim. Pro., § 259. 62 Special inquiries by grand jury. The grand jury must inquire. 1. Into the case of every person imprisoned in the jail of the county, on a criminal charge, and not indicted; 2. Into the condition and management of the public prisons in the county; and 3. Into the willful and corrupt misconduct in office, of public officers of every description, in the county. Code Crim. Pro., § 260. 63 Access to public prisons and records. They are also entitled to free access, at all reasonable times, to the public prisons, and to the examination, without charge, of all public records in the county. Code Crim. Pro., § 261. 64 From whom to ask advice. vice of any judge of the court, or Crim. Pro., § 262. The grand jury may in any case ask the adof the district attorney of the county. Code 65 Duty of district attorney. Whenever required by the grand jury, it shall be the duty of the district attorney of the county to attend them for the purpose of examining witnesses in their presence, or of giving them advice upon any legal matter, and of issuing subpoenas or other process for witnesses. Code Crim. Pro., $263. 66 Who may be present during sessions. The district attorney of the county must be allowed at all times to appear before the grand jury, at his request, for the purpose of giving information relative to any matter before them, but no district attorney, officer, or other person, shall be present with the grand jury during the expression of their opinions, or the giving of their votes upon any matter. Code Crim. Pro., § 264. 67 Secrets of grand jury to be kept. Every member of the grand jury must keep secret whatever he himself, or any other grand juror, may have said, or in what manner he, or any other grand juror, may have voted, on a matter before them. Code Crim. Pro., § 265. 4 Den. 133; 6 Abb. N. C. 33; 11 Civ. Pro. 179. See § 24, ante, 68 Grand juror, when bound to disclose testimony of witness. A member of the grand jury may, however, be required by any court, to disclose the testimony of a witness examined before the 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 them by any person upon a charge against him for perjury in giving his testimony, or upon his trial therefor. Code Crim. Pro., 266. 4 Den. 133; 6 Abb. N. C. 33; 11 Civ. Pro. 179. 69 Grand juror, when not to be questioned for his conduct. A grand juror cannot be questioned for anything he may say, or any vote he may give, in the grand jury relative to a matter legally pending before the jury, except for a perjury of which he may have been guilty, in making an accusation or giving testimony to his fellow jurors. Code Crim. Pro., § 267. 3 C. H. Rec. 64; 5 id. 109. Stenographers for Grand Juries. 70 How appointed; proviso. It shall be lawful for the county judge of any county of this state, upon the recommendation of the district attorney of such county, to appoint a stenographer to take the testimony given before grand juries in said county, excepting that in the counties of Albany, New York and Erie such appointments shall be made by the district attorneys of said counties of Albany, New York and Erie, respectively, provided that in all counties not having a population of seventy-five thousand, as shown by the state or federal census next preceding such appointment, the county judge shall only appoint such stenographer upon a favorable vote of the board of supervisors of said county; and excepting, that in the county of Monroe, it shall be lawful for the county judge of such county, upon the recommendation of the district attorney of such county, to appoint two stenographers, to be known as the first and second stenographer, each of whom shall have authority to take and transcribe the testimony given before the grand juries in said county of Monroe, and each of whom shall be considered as an assistant to the district attorney and under his direction and control. In the county of Albany such appointment shall be in writing, under the hand and seal of the district attorney, and shall be filed in the county clerk's office of Albany county, and the stenographer so appointed shall serve during the pleasure of the district attorney, and shall be considered as a clerk and assistant to the district attorney and under his direction and control, and, whenever directed by the district attorney, shall have authority to take and transcribe the testimony given before the grand juries in said county of Albany, and, whenever required by the district attorney, to attend upon and take and transcribe the testimony given at coroners' inquests and the examination and trial of criminal cases, which said testimony so taken and transcribed shall be for the exclusive use and benefit of the district attorney of said county, unless otherwise ordered by the court. The appointment of a stenographer by said district attorney shall be deemed a revocation of any prior appointment of a stenographer. L. 1885, c. 348, § 1, as am'd L. 1886, c. 131; L. 1894, c. 82, and L. 1895, c. 661. 71 Qualifications of same. Every stenographer appointed under the provisions of this act shall be a citizen and resident of the judicial district in which he is appointed. Id., § 2, as am'd L. 1895, c. 177. 72 Appointment, how made; oath of office. Every appointment made pursuant to this act shall be in writing under the hand of the judge who makes the same and of the district attorney who recommends the appointee, and shall be filed in the clerk's office in which such appointment is made. Every appointee, before he enters upon the duties of his office, shall take and subscribe the constitutional oath of office, and shall make oath before the county clerk that he will keep secret all matters and things occurring before such grand juries. Id., § 3. 73 Revoking appointment. Any appointment made under the provisions of this act may be revoked by the authority making the same, which revocation must be in writing and be filed in the office of the clerk of the county in which such appointment was filed. Id., § 4. 74 Duties; original testimony. It shall be lawful for any stenographer, duly appointed and qualified as herein before provided, to attend and be present at the session of every grand jury impaneled in the county in which he is appointed, and it shall be his duty to take in short hand the testimony introduced before such grand juries, and to furnish to the district attorney of such county a full copy of all such testimony as such district attorney shall require, but he shall not permit any other person to take a copy of the same, nor of any portion thereof, nor to read the same, or any portion thereof, except upon the written order of the court 1 duly made after hearing the said district attorney. All of the said original minutes shall be kept in the custody of said district attorney, and neither the same, nor a copy of the same, or of any portion of the same, shall be taken from the office of said district attorney excepting as above provided. L. 1885, c. 348, § 5. 75 Stenographer violating act. Every stenographer appointed as aforesaid, who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor. Id., § 6. 76 Compensation. Each stenographer appointed as aforesaid, shall receive such compensation for services rendered while engaged in taking testimony before a grand jury as shall be determined by the board of supervisors of the county in which he is appointed, excepting that in the county of New York, such compensation shall be fixed by the board of estimate and apportionment of the city of New York, and such compensation shall not be less than five nor more than ten dollars per day; and in addition thereto he shall be entitled to and shall be allowed for a copy of testimony furnished to the district attorney the same rate per folio as is now allowed to the stenographers of the county courts or court of common pleas in their respective counties. Such compensation shall be a county charge and shall be paid by the treasurer of such county upon the affidavit of the stenographer and the certificate of the district attorney specifying the number of days of actual service and the number of folios furnished; excepting that in the county of Monroe, the stenographer known as the first stenographer shall receive an annual salary of fifteen hundred dollars, and the stenographer known as the second stenographer shall receive a salary of fifty dollars per month; and excepting that in the county of Albany said stenographer shall receive an annual salary of twelve hundred dollars. Such salaries shall be a county charge and shall be paid monthly by the treasurers of said counties in the same manner as the salaries of other county officers are paid. Id., § 7, as am'd L. 1894, c. 82, and L. 1895, c. 661. § 8 repeals all inconsistent acts. 77 Stenographer disclosing evidence taken before grand jury. A stenographer appointed to take testimony given before a grand jury who permits any person other than the district attorney to take a copy of such testimony or of any portion thereof or to read the same or any portion thereof, except on the written order of the court, is guilty of a misdemeanor. Pen. Code, § 157a, added by L. 1893, c. 692. APPEARANCE OF ASSISTANT DISTRICT ATTORNEYS BEFORE; see County Law, § 202. BINDING OVER WITNESSES TO APPEAR BEFORE; see Perjury, $ 8. CHALLENGE TO TRIAL JUROR FOR HAVING SERVED ON; see Trials, § 251. CHARGES AND PRESENTMENTS TO; see Lotteries, § 9. DISCHARGE OF PRISONERS NOT INDICTED BY; see County Law, § 98. DISMISSAL OF INDICTMENT BY; see Trials, § 275. JURISDICTION OF COURTS TO INQUIRE INTO OFFENSES BY INTERVENTION OF; see Commitment, § 24; Coroners, § 17; County Courts, § 24; Jurisdiction; New York, § 108; Search Warrants, § 21. PERSON NOT TO BE HELD TO ANSWER INFAMOUS CRIME, EXCEPT ON PRESENTMENT OR PRIVATE OR LOCAL BILLS CONCERNING, FORBIDDEN; see Constitution, § 42. STAY, PENDING ACTION BY; see Courts of Special Sessions, 2, 3. SUBPOENAS FOR WITNESSES BEFORE; see Death Penalty, § 7; Evidence, § 133. AT TERMS OF COURTS OF SESSIONS; see County Courts, SS 24, 29, 30. GRAND JURORS, BRIBERY, ETC., OF; see Bribery, SS 5-8; Embracery. DRAWING AND SUMMONING OF; see Sheriff, § 31; State Funds, § 31; Supreme Court, $ 28. FEES OF; see Trials, § 220. FINES IMPOSED ON; see Code of Civil Procedure, § 11; Fines, etc., § 1. NOT TO BE DISQUALIFIED ON ACCOUNT OF CREED, COLOR, ETC.; see Rights, Bill of, $ 25. See also Indictment; Jury. GRAND LARCENY. See Larceny, §§ 3, 4, 6, 7, 14, 25. |