255. Evidence receivable 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 eight.

See People v. Hyler, 2 Park. 566; People v. Dunn, 53 Hun, 384; People v. Briggs, 60 How. Pr. 17; United States v. Reed, 2 Blatchf. 435; People v. Tinder, 19 Cal. 539; U. S. v. Kilpatrick, 16 Fed. 765.

§ 256. Evidence receivable before the grand jury.— The grand jury can receive none but legal evidence.

See People v. Hyler, 2 Park. 566; People v. Briggs, 60 How. Pr. 17; People v. Sellick, 4 N. Y. Cr. Rep. 334; People v. Dunn, 53 Hun, 384; U. S. v. Kilpatrick, 16 Fed. Rep'r, 765; People v. Singer, 18 Abb. N. C. 101, note.

§ 257. Grand jury not bound to hear evidence for the defendant, but may order explanatory evidence to be produced.— The grand jury is not bound to hear evidence submitted 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.

The grand jury have not power to require the accused to appear before them even for the purpose of giving opportunity for voluntary explanations. People v. Singer, 18 Abb. N. C. 96; 5 N. Y. Cr. Rep. 2.

$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.

See People v. Baker, 10 How, Pr. 567; People v. Hyler, 2 Park. 570; People v. Price, 6 N. Y. Cr. Rep. 144; 53 Hun, 185.

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. Grand jury must inquire as to persons impris oned on criminal charges and not indicted; the condition of public prisons, and the misconduct of public officers.— 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, and to examine 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, and who may be present during their sessions. 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. When and from whom they may ask aàvice, and who may be present during their sessions. 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 upou any legal matter, and of issuing subpoenas or other process for witnesses.

$264. When and from whom they may ask advice, and who may be present during their 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.

See 4 Bl. Com. 126.

§ 266. Grand jury, when bound to disclose the testimony of a witness. - A member of the grand jury may, how ever, be required by any court, to disclose the testimony of a witness examined before the grand jury, for the purpose of ascer taining 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.

See 12 Cr. L. Mag, 583.

§ 267. Grand juror not to be questioned for his conduct as such. A grand juror cannot be questioned for anything he may say, or any vote he inay 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,

TITLE V.

OF THE INDICTMENT.

CHAPTER I. Finding and presentation of the indictment.

II. Form 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.

SECTION 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 dismissal 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 grand 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.

That twelve grand jurors must concur, see 1 Bish. Crim. Proc., § 697; Peopie v. Shattuck, 6 Abb. N. C. 33; Dawson v. People, 25 N. Y. 403. As to indorsement by foreman, see 1 Bish. Crim. Law, $ 698; McGuffie v. State, 17 Ga. 497; State v. Brown, 31 Vt. 602; Wall v. State, 23 Ind. 150.

See as to "signing." Hamilton v. State, 103 Ind. 96; 53 Am. Rep. 491, note. In Brotherton v. People, 75 N. Y. 162, the court say: " 'The certificate of the foreman is no part of the indictment, but is the statutory mode of authenticating it, and the record furnishes evidence that it was so authenticated." State v. Taggart, 38 Me. 298; State v. Hogan, 31 Mo. 342.

$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.

The grand jurors may be examined as to whet er or not twelve grand jurors concurred in the finding. People v. Shattuck, 6 Abb. N. C. 33. See People v.

Briggs, 60 How. Pr. 17.

Should return not a true bill" or not found." 1 Bish. Crim. Proc., § 697; State v. Horton, 63 N. C. 595, Esterlong v. State, 35 Miss. 210.

§ 270. Effect of dismissal.—The dismissal of a 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.

A criminal charge may be re-submitted to the grand jury as often as the court may so direct. People v. Lynch, 20 Weekly Dig. 9. See People, er, v. Sheriff, 11 Civ. Proc. 186.

In People v. Warren, 109 N. Y. 617, defendant struck one D. a blow on December 13, inflicting injuries which proved his death on January 5, following. A presentation to the grand jury was made during the life-time of D. upon a complaint of assault and battery, but it failed to find an indictment. After the death of D. an indictment charging defendant with the crime of manslaughter in the second degree was found for the same assault. Held, that it was not necessary to obtain leave of the court before submitting to the grand jury the complaint on which it found said indictment. That a conviction even of the offense of assault and battery would have been no bar to a prosecution for the graver crime subsequently developed.

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 two hundred and fifty-five, 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.

See People v. Naughton, 38 How. Pr. 430; 7 Abb. Pr. (N. S.) 421; Eighmy v. People, 79 N. Y. 546; People v. Jaehne, 4 N. Y. Cr. Rep. 166; State v. Shores, 31 W. Va. 491; 13 Am. St. Rep. 875.

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 two hundred and sixtyeight, 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 it shown to any person other than a public officer, until the defendant has been arrested or has appeared.

In Dawson v. People, 25 N. Y. 405-406, the court say: "There being no words in the statute indicating an intention on the part of the legislature that the indictment should be void if not so filed, this provision must be regarded as merely directory. 3 Mass. 232; 6 Wend. 486; 6 Hill, 42; id. 646; 3 Den. 526; 9 Paige, 17; 2 N. Y. 134; 1 Burr. 447; Smith's Com. on Statutes, SS 670680."

CHAPTER II.

FORM OF THE INDICTMENT.

SECTION 273. Forms of pleading heretofore existing, abolished. 274. First pleading for the people, is indictment.

275. Indictment, what to contain.

276. Form of indictment.

277. When defendant is indicted by fictitious or erroneous name, his true name may be inserted in subsequent proceedings.

278, 279. Indictment must charge but one crime and in one form, except where it may be committed by different means.

280. Statement as to time when crime was committed.

281. Statement as to person injured or intended to be injured.
282. Construction of words used in indictment.

283. Words used in a statute Leed not be strictly pursued.