Hunter

It must be taken to be the settled doctrine of this Court, that the question hereinafter considered cannot be presented in the Court below, by motion to set aside the indictment. (People v. Southwell, 46 Cal. 141 ; People v. Colby, present term.) But inasmuch as the doctrine of those cases has never been assented to by the Chief Justice, and as counsel were permitted, at the argument, to go at very great length into the main question, we have thought it proper to consider it irrespective of the questions determined in the Southwell and Colby cases.

It is claimed by counsel for defendant, that by the death of one of the grand jurors, the grand jury “ dissolved,” and all that had been done by the grand jury previously, and all done by the remaining grand jurors after the death, went for naught. And this by reason of the language of § 192 of the Code of Civil Procedure, which reads: “ A grand jury is a body of *66 men nineteen .in number, returned in pursuance of law,” etc. Prior to the amendment of 1876, the section read : “ A grand jury is a body of men not less than thirteen nor more than fifteen in number,” etc. We have been unable to perceive that the amendment has changed the…