In the year 1892 Lancaster county contained a.population of seventy thousand or more inhabitants and .constituted the third judicial district of the state. On the 1st of January of that year the district judges fixed two terms of court for said year in said county, as follows: One term commencing February 1,1892, and which closed July 5, 1892, known as the “February Term,” and one term commencing September 19, 1892, and which closed December 24, 1892, and which was known as , the “Sep
“In the Matter of the Calling of the Grand Jury.
“It is hereby ordered by the court that a grand jury be called on November 16, 1892, to take action on such matters as may properly come before it.
“Dated October 25, 1892. Charles L. Hall,
“Samuel J. Tuttle, “Judges.”
In pursuance of this order persons having the qualifications of grand jurors were selected, summoned, and appeared in court on the 16th of Nevember, 1892, and were duly organized into a grand jury. This grand jury returned an indictment for felony against one J. Dan Lauer. To the indictment so returned Lauer filed a plea in abatement, assailing the validity of the indictment on the ground that the district judges had no authority of law for making such order, and that the grand jury’s proceedings and the indictment returned were null and void. The district court overruled a demurrer filed by the county attorney to this plea and dismissed the state’s action. To this ruling of the district court the county attorney took an exception and brings the action of the district court here for review in pursuance of the statute.
Article 1, section 10, of the constitution provides: “No person shall be held to answer for a criminal offense except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in case of impeachment, and in cases arising in the army and navy, or in the militia when in actual service in time of war or public danger, unless on a presentment or indictment of a grand jury; Provided,, That the legislature may, by-law, provide
Section §78 of the Criminal Code provides: “That the several courts of this state shall possess and may exercise the same power and jurisdiction to hear, try, and determine prosecutions upon information for crimes, misdemeanors, and offenses, to issue writs' and process, and do all other acts therein as they possess and may exercise in cases of like prosecutions upon indictments.”
Section §$4 of the Criminal Code provides: “Grand juries shall not hereafter be drawn, summoned, or required to attend at the sittings of any court within this state, as provided by law, unless the judge thereof shall so direct by writing, under his hand, and filed with the clerk of said court.”
The precise question involved is whether or not in counties haying seventy thousand of more inhabitants the judge of the district court of such county may, during the session of a term of court, order the selection and impaneling of a grand jury to act during such term of court; or whether the order of the district court directing the selection and summoning of a grand jury for any term of court must not be made prior to the first day of such term of court, and the persons from whom such grand jury is to be chosen must not be selected by the county board at least twenty days prior to the first day of the term of court at which such grand jury is to act. The answer to this question involves a construction of section 669h of the Code of Civil Procedure, which is as follows: “ If a grand jury shall be required by law or by order of the judge for any term of court, it shall be the duty of the county board in each of the counties in this state wherein such court is directed to be holden, at least twenty (20) days before the sitting of such court, to select twenty-three (23) persons, possessing the qualifica
1. That so long as section 584 of the Criminal Code remains in force, no grand jury can be lawfully selected and impaneled unless the selection and'impaneling of such grand jury has been first ordered by the judge of the district court in which such grand jury is to act.
2. That in counties having seventy thousand or more inhabitants the order of the district judge ordering the selecting and summoning of a grand jury must be in writing and filed with the clerk of the district court of such county, more than twenty days prior to the first day of the term of court at which said grand jury is desired.
3. That the county board of the county in which said grand jury is ordered, at least twenty days before the first day of the term of court for which said grand jury is ordered, must select the persons from among whom said grand jury is to be impaneled.
4. That the district judge may, in his discretion, require,
The order made by the district judges of Lancaster county, during the September, 1892, term of that court directing the selecting and impaneling of a grand jury for that term was void. The exceptions of the state are overruled.
Exceptions overruled.