People v. Colby , 54 Cal. 37 ( 1879 )

By the Court.

We think the petition for a rehearing should be denied; but as certain questions are considered and apparently decided in the former opinion herein, the determination of which is not absolutely required by the exigencies of the case, that opinion is so far modified as to make the judgment depend exclusively upon our affirmance of the rule as laid down in People v. Southwell, (46 Cal. 142) viz., that a motion to set aside an indictment can only be based upon the grounds enumerated in sec. 995 of the Penal Code, and that the clause that an indictment .shall be set aside where not found as prescribed in the Code will not support a motion to set aside an indictment on the ground that the grand jury was not properly selected, summoned, or impanneled.

The first subdivision of sec. 995 of the Penal Code provides that an indictment must be set aside “ where it is not found, indorsed, or presented as prescribed in this Code.” Sec. 940 provides how an indictment must be found—that is, that it must be concurred in by the constitutional number—twelve. The last mentioned section and 941 and 944 prescribe how an indictment must be indorsed and presented. The first subdivision of sec. 995 by its terms refers to the portions of the Code which prescribe the mode of finding, indorsing, and presenting an indictment. It is equally plain that the third subdivision of the same section cannot be made to refer to those persons “ present during the session ” who themselves constitute the grand jury impanneled and sworn under the direction of the Court.

Rehearing denied.