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. § 248. Charge of the court. 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 252 to section 267, 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. § 249. Retirement of the grand jury.— The grand jury must then retire to a private room and inquire into the offenses cognizable by them. § 250. Appointment of a clerk, and his duties.— 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. § 251. Discharge of the 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. § 252. Power of grand jury.-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. § 253. Foreman may administer oaths.-The foreman may administer an oath, to any witness appearing before the grand jury. § 254. Definition of an indictment.-An indictment is an accusation in writing, presented by a grand jury to a competent court, charging a person with a crime. § 255. Evidence before the 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. § 256. Legal evidence only.-The grand jury can receive none but legal evidence. Reception of improper evidence cannot be raised by plea. 11 W. Dig., 386. § 257. Evidence grand jury may hear or order.— 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. Hope v. Peo., 83 N. Y., 418. § 258. Degree of evidence, to warrant an 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. What evidence sufficient. Peo. v. Hyler, 2 Park., 570. § 259. Grand jurors must declare their knowledge as to commission of a crime.-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. § 260. 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. § 261. Grand jury entitled to access to public prisons, public 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. § 262. When and from whom they may ask advice.The grand jury may in any case ask the advice of any judge of the court, or of the district attorney of the county. § 263. 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 subpœnas or other process for witnesses. § 264. 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. § 265. Secrets of the 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. § 266. Grand jury, when bound to disclose the testimony of a 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. Peo. v. Hulbut, 4 Denio, 133. § 267. Grand juror 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. Reflections on jurors will be punished as contempt. Ex. p. Van Hook, 3 C. H. Rec., 61; Ex. p. Spooner, 5 id., 109. TITLE V. Of the Indictment. CHAPTER I. Finding and presentation of the indictment. III. Amendment of the indictment. IV. Arraignment of the defendant. V. Setting aside the indictment. VI. Demurrer. VII. Plea. VIII. Removal of the action before trial. CHAPTER I. FINDING AND PRESENTATION OF THE INDICTMENT. SEC. 268. Indictment must be found by twelve grand jurors, and indorsed by foreman. 269. If not so found, depositions, etc., must be returned to the court, with dissmissal indorsed. 270. Effect of dismissal. 271. Names of witnesses must be indorsed upon indictment. 272. Indictment must be presented in presence of the grand jury, and filed. § 268. Indictment must be found by twelve jurors, and indorsed by foreman. - An indictment cannot be found, without the concurrence of at least twelve grand jurors. When so found, it must be indorsed, “A true bill," and the indorsement must be signed by the foreman of the grand jury. Indorsement no part of indictment. Brotherton v. Peo., 75 N. Y., 159. § 269. If not so found, depositions, etc., must be returned to the court, with dismissal indorsed.--If twelve grand jurors do not concur in finding an indictment, the depositions, (and statement, if any,) transmitted to them, must be returned to the court, with an indorsement thereon, signed by the foreman, to the effect that the charge is dismissed. Grand jury may be examined in support of a motion to quash indictment to prove twelve did not concur. Peo. v. Shattuck, 6 Abb. N. C., 33; see Peo. v. Briggs, 60 How. Pr., 17. 270. Effect of dismissal.-The dismissal of the charge does not, however, prevent its being again submitted to a grand jury, as often as the court may so direct. But without such direction, it cannot be again submitted. § 271. Names of witnesses must be indorsed upon indictment. When an indictment is found, the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, as provided in section 255, must be indorsed upon the indictment before it is presented to the court. If not so indorsed, the court must, upon the application of the defendant, at any time before trial, direct the names of such witnesses as they appear upon the minutes of the grand jury to be furnished to him forthwith. Discretionary with court to order prosecution to furnish prisoner the evidence used before the grand jury. Eighmy v. Peo., 79 N. Y., 546. § 272. Indictment must be presented in presence of the grand jury and filed.— An indictment, when found by the grand jury, as prescribed in section 268, must be presented by their foreman, in their presence, to the court, and must be filed with the clerk, and remain in his office as a public record, but it must not be shown to any person other than a public officer, until the defendant has been arrested or has appeared. Provision for filing merely directory. Dawson v. Peo. 25 N. Y., 399; see § 313, post. |