This is a motion to vacate and set aside the indictment found against the defendant by the grand jury of Ontario county, charging him, with the crime of murder in the first degree. When the defendant was called upon to рlead, his counsel challenged the validity of the indictment upon the ground that Carrie Sexton, a daughter of the de
At common law it was usual for the trial judge by a preliminary examination of a child to determine whether it had sufficient intelligence and culture to understand the obligation of an oath, but in no case could the child’s statements, not under oath, be received. The Code of Criminal Procedure, section 392, has changed that rule. The language of that section is as follows: “ The rules of evidence in civil cases are applicable also to criminal cases, except аs otherwise provided in this Code. "Whenever in any criminal proceedings a child actually or apparently under the age of twelve years offered as a witness does not in the opiniоn of the court or magistrate understand the nature of an oath, the evidence of such child may be received though not given under oath if, in the opinion of the court or magistrate such child is рossessed of sufficient intelligence to justify the reception of the evidence. But no person shall be held or convicted of an offense upon such testimony unsupported by other еvidence.”
Section 255 of the Code of Criminal Procedure provides that: “ 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.”
The language of this section requires every witness who testifies before the grand jury to be sworn, and this rule must be followed, even in the case of children under twelve years of age, unless that section is modified by section 392, which allows a child under twelve years of age to testify, not under oath, in all criminal proceedings, providing the court or magistrate is of the opinion that such child is possеssed of sufficient intelligence to justify the reception of the evidence.
The jurisdiction of the grand jury is coextensive with’ that
I can see no good reason why they should not have the power to determine whether they will receive, not under oath, the evidence of a child under twelve yeаrs of age. It is not claimed that these children were not possessed of sufficient intelligence to justify the grand jury in receiving their evidence. The principal point urged by the learned counsel for the defendant is that they were not sworn. We will assume that the defendant is guilty of the crime charged against him, but without the testimony of these children the evidence would not be sufficient to warrant the grаnd jury in finding an indictment. Must he be permitted to go free because the evidence of these children could not be taken before the grand jury ? And yet their evidence upon the trial of the indictment wоuld be competent and sufficient with the other evidence to justify the conviction of the accused. Such' a construction of the statute would be unreasonable, and would at times work greаt injustice to the people in the investigation of crimes by the grand jury. The Legislature could not have intended to deprive the grand jury of this class of evidence.
The remarks by Mr. Justice Williams in People v. Molineux,
Even if the evidence was incompetent it does not vitiate the indictment, as there is sufficient legal evidence with the children’s testimony stricken out to sustain it.
The courts are not called upon to sit in review of the investigations of a grand jury as upon the review of a trial when error is alleged; but in cases where the court can see that the indictment was based wholly upon incompetent evidence, then it should be set aside. Grand juries do not try the issues, but inquire and determine whether a crime has been committed; they do not сondemn, but only accuse, and it would be unwise in practice to confine them to technical rules of evidence. Hope v. People,
Underhill in his work on Criminal Evidence, section 26, lays down the following rule: “ It should be remembered, however, that the testimony goes before the grand jury in the absence of the judge, and very often while the prosecuting officer is not in the room. Hence, to confine grand juries to the technical rules of evidence may be intolerable in practice. As a general rule the fact that some incompetent evidence was received in connection with competent evidence, or an incompetent witness examined, is not ground for quashing an indictment, since these errors may be corrected on the trial.”
The grand jury ought not to be required to conduct its proceedings with the same strictness as would prevail at the trial. Such a requirement would be fatal to our present system of prosecuting criminal actions by indictment.
The following rale is laid down in the American and English Encyclopaedia of Law, volume 17, page 1283: “ The court will not look behind the return of the grand jury and set aside an indictment because that body received improper evidence or the testimony of witnesses who were not competent to testify.”
Judge Andrews in People v. Petrea,
Section 313 does not authorize the court to set aside an indictment on the ground that incompetent evidence was given before the grand jury. It provides that: “ The indictment must be set aside by the court in which the defendant is arraignеd, and upon his motion, in either of the following eases, but in no other:
“ 1. When it is not found, indorsed and presented as prescribed in sections two hundred and sixty-eight and two hundred and seventy-two.
“ 2. When a person hаs been permitted to be present during the session of the grand jury, while the charge embraced in the indictment was under consideration, except as provided in sections two hundred and sixty-two, two hundrеd and sixty-three and two hundred and sixty-four.”
The exceptions referred to in the last three sections pertain to the right of the district attorney to appear before the grand jury for the purpose of examining witnesses or for the purpose of giving information relative to any matter before them.
Section 268 provides that: “Ah indictment cannot be found without the concurrence of аt 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.”
Section 272 provides that: “Ah indictment when found' by the grand jury, as prescribed in section two hundred аnd
It is plain to be seen from an examination of the above ■sections of the Code that insufficient or incompetеnt evidence is not among the statutory grounds for authorizing the court to set aside an indictment, unless there has been some invasion of a constitutional right of the accused. Hope v. Peoрle, supra; People v. Willis,
I have examined the grand jury minutes with care, and lave carefully considered the testimony, and I am satisfied that if the children’s testimony is stricken out there is sufficient legal evidence to sustain the indictment. The motion, therefore, to set it aside must be denied, and the motion to inspect the grand jury minutes is also denied.
Motions denied.