Colby

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…

I dissent from the opinion and judgment in this case, and also from the order denying the prisoner’s petition for a rehearing, upon the grounds set forth in my dissenting opinion in People v. Southwell.

*39 It appears that the names of the persons summoned for the purpose of forming a grand jury having been called, and they having appeared, the prisoner, who was then in custody, successfully challenged six of them. The legal consequence ensuing from this fact is pointed out in the Penal Code (sec. 900): “If a challenge to an individual grand juror is allowed, he cannot be present or take part in the consideration of the charge against the defendant who interposed the challenge or the deliberations of the jury thereon.” It thus resulted that the remaining thirteen grand jurors who still continued on the panel became, by operation of the statute, the tribunal to whom the charge' against the defendant was to be submitted. No statute authorized the Court to supply the places of the six objectionable grand jurors by substituting other six upon the grand jury in their stead. But such an order was nevertheless made, and six others were substituted and took part with the thirteen grand…