By the Court, Crockett, J.:
The transcript as originally certified by the Clerk of the Court below and filed here in November last, was defective in that it did not show that an appeal had been taken. No *649notice of appeal being found in the record, the case could not be proceeded with here until the defect in this particular had been supplied. In this connection it may not be inappropriate to again call attention to the provisions of the Penal Code regulating appeals in criminal cases: “Sec. 1246. Upon the appeal being taken, the Clerk with whom the notice of appeal is filed must, within ten days thereafter, without charge, transmit to the Clerk of the Appellate Court a copy of the notice of appeal, and of the record, and of all bills of exceptions, instructions and indorsements thereon,” etc.
The cumbrous system of criminal procedure prescribed by the statute, even when pursued with all possible diligence, too often necessitates much delay in the administration of criminal justice, and it is important that this should not be needlessly increased by a failure to observe the plain requirements of the statute in preparing transcripts upon appeal to the Court.
We think there was sufficient evidence of the conspiracy between Alexander and the defendant to justify the Court in admitting in evidence the declarations of the former, made previous to the alleged killing. The question of conspiracy was then submitted to the jury, with instruction to disregard the declarations of Alexander, unless the conspiracy was satisfactorily proved. This was the proper practice.
The objection made to the seventh instruction given on the request of the prosecution is hypercritical. The instruction does not intimate that on the question of conspiracy the jury may act on preponderating evidence; and, if the defendant desired to have it made more specific on this point, he should have called the attention of the Court to it, and requested a modification.
The eighth instruction was to the effect that if Alexander and the defendant ha'd conspired to perpetrate an act of violence upon Mrs. Strong, the jury might consider the declarations made by Alexander in respect thereto, and “draw the same conclusion from them as if made by Geiger.” In other words, the conspiracy to commit the act of violence *650being proved, the declarations of Alexander are to be treated as the declarations of Geiger. They are to have no greater or less weight than if Geiger himself had made them. If the two had conspired to commit an assault and battery upon Mrs. Strong, it would have been competent on the trial of an indictment for murder against them to prove the conspiracy to commit the assault and battery, as tending to show their hostility toward her. The conspiracy being proved, the declaration of either conspirator in respect to the assault and battery would be competent evidence against the other, as tending to show in a greater or less degree his animosity toward the deceased. It would be for the jury to determine how much weight, if any, was due to such evidence. But we think the instruction states the law correctly.
The motion to set aside the indictment was properly denied. When the grand jury which found the indictment was impaneled, the defendant was in actual custody under a warrant of arrest, issued by a magistrate on a sworn complaint, charging the defendant with the crime of murder, for which he was afterwards indicted. But he had not then been examined by the committing magistrate. When the grand jury was about to be impaneled, the defendant was brought into Court, and was informed by the Judge that he might then interpose a challenge to the panel or to any individual grand juror, the grand jury being then present. But the defendant declined to interpose any challenge, on the ground that he had not then been held to answer for any offense.
The defendant, at the proper time, moved to set aside the indictment, on the ground that some of the grand jurors who found it, were incompetent to act by reason of their having previously formed and expressed an unqualified opinion that the defendant was guilty of the crime imputed to him, and moved for leave to challenge the said grand jurors and to prove the challenge good. But the Court denied the motion, on the ground that when the grand jury was impaneled the defendant had been held to answer within the meaning of section 995 of the Penal Code, and *651had waived his right of challenge. That section enumerates several grounds on which an indictment may be set aside, and among others, “ when the defendant had not been held to answer before the finding of the indictment, on any ground which would have been good ground for challenge either to the panel or to any individual grand juror.” Section 872 provides, that when a person accused of crime has been arrested and brought before a committing magistrate, if it appears that a public offense has been committed, and there is sufficient cause to believe that the defendant is guilty thereof, the magistrate must endorse on the deposition an order to the effect that, it having been made to appear that a public offense has been committed, and that there is sufficient cause to believe that the defendant is guilty thereof, “I order that he be held to answer to the same.” Sections 873, 874 and 875 prescribe how bail may be given by the accused in bailable cases, and sections 876 and 877 direct that a commitment be issued by the magistrate, commanding the sheriff to receive the defendant into custody, “ and detain him until he is legally discharged.” As already stated, when the grand jury which found this indictment, was impaneled, the defendant had not been examined before the committing magistrate, but was in actual custody in the county jail under a warrant of arrest, issued upon a sworn complaint, charging him with the crime of murder. Section 923 of the Code makes it the duty of the Grand Jury to “inquire into the case of every person imprisoned in the jail of the county on a criminal charge, and not indicted.” It was therefore the especial duty of the grand jury to inquire into this case; and though the defendant had not been “ held to answer ” in a strict technical sense, as that phrase is employed in section 872, we think he was held to answer within the provision of section 995. Being in actual custody in the county jail upon a warrant of arrest issued on a sworn complaint, and having been offered the opportunity to challenge the grand jurors, about to be impaneled, whose especial duty it was to inquire into his case, we think this was a substantial compliance with the requirements of the statute. This construe*652tion of the statute will subserve the ends of justice, and prevent vexatious delays in the administration of criminal law. A defendant in actual custody, under a warrant on a .sworn complaint, who is confronted with the grand jurors, whose especial duty it is to investigate his ease, and who is offered an opportunity to interpose his challenge, cannot complain that he has been deprived of any substantial right in that particular. But we are not to be understood as extending the rule beyond the facts of this case.
Judgment affirmed. Remittitur forthwith.
Mr. Justice McKinstry did not express an opinion.