time and place where the examination is to be taken, shall be served on the defendant, and his counsel, if he have any, at least two days before the time fixed for such examination, and the defendant may be present personally upon such examination to confront the witness produced against him, if the defendant have no counsel the order shall contain a provision assigning counsel to him for the purpose of such examination upon whom a copy of said order, affidavit and notice shall be served. [AM'D CH. 416 OF 1883; 422 OF 1887. PASSED MAY 21, 1887.] See § 620-635, post. § 220. [Repealed ch. 416 of 1883.] § 221. Magistrate to return depositions, etc.- When a magistrate has discharged a defendant, or has held him to answer, as provided in sections 207 and 208, he must return to the next court of oyer and terminer or court of sessions of the county, or city court having power to inquire into the offense by the intervention of a grand jury, at or before its opening on the first day, the warrant, if any, the depositions, the statement of the defendant, if he have made one, and all undertakings of bail, or for the appearance of witnesses, taken by him. TITLE IV. Of Proceedings after commitment, and before Indictment. CHAPTER I. Preliminary provisions. II. Formation of the grand jury; its powers and duties. CHAPTER I. PRELIMINARY PROVISIONS. SEC. 222. Crimes; how prosecuted. § 222. Crimes; how prosecuted.-All crimes prosecuted in a court of oyer and terminer, or in a court of sessions, or in a city court, must be prosecuted by indictment. Section 6, art. 1 of State Const.; art. 5, Fed. Const.; Matter of McCluskey, 40 Fed. Rep. 71. CHAPTER II. FORMATION OF THE GRAND JURY, ITS POWERS AND DUTIES. SEC. 223, 224. Grand jury defined. 225, 226, 227. For what courts to be drawn; the order. 228. Misdescription in order 229. Mode of selecting grand jurors. 230. If sixteen grand jurors do not appear. additional number to be ordered. 231, 232, 233. Manner of designating the additional grand jurors. 234. Summoning the additional grand jurors, and compelling their attendance. 235. When new grand jury may be summoned for the same court. 236. Grand jury, how drawn when more than a sufficient number attends. 237. Who may challenge an individual grand juror. 238. Causes of discharge of the panel. 239. Causes of challenge to an individual grand juror. 240. Manner of taking and trying the challenges. 241. Decision upon the challenge. 242. Effect of allowing a challenge to an individual grand juror. 243. Violation of last section. 244. Appointment of foreman. 245, 246, 217. Oath of the foreman and the other grand jurors. 249. Retirement of the grand jury. 250. Appointment of a clerk, and his duties. 251. Discharge of the grand jury. 252. Power of grand jury to inquire into crimes, etc. 253. Foreman may administer oaths. 254. Definition of an indictment. 255. Evidence receivable before a grand jury. 256. Same. 257. Grand jury not bound to hear evidence for the defendant, but may order explanatory evidence to be produced. 258. Degree of evidence, to warrant an indictment. 259. Grand jurors must declare their knowledge as to commission of a crime. 260. Grand jury must inquire as to persons imprisoned on criminal charges and not indicted; the condition of public prisons; and the misconduct of public officers. 261. Grand jury entitled to access to public prisons, and to examine public records. 262, 263, 264. When and from whom they may ask advice, and who may be present during their sessions. 265. Secrets of the grand jury to be kept. 266. Grand jury, when bound to disclose the testimony of a witness. § 223. Grand jury defined.— A grand jury is a body of men, returned at stated periods from the citizens of the county, before a court of competent jurisdiction, and chosen by lot, and sworn to inquire of crimes committed or triable in the county. People ex rel. Pickard Sheriff, 11 Civ. Pro. 181; Matter of Choate, 24 Abb. N. C. 430; 18 Civ. Pro. 180; 8 N. Y. Cr. 1; Matter of Hackley, 24 N. Y. 78; People v. Naughton,7 Abb (N. S.) 421; Bergh's Case, 16 id. 281; People v. Kelly, 24 N. Y. 74; People ex rel. Hackley. Kelly, 21 How. 54; Matter of Bain, 121 U. S. 1; People v. Briggs, 60 How. 21; People v. Hooghkerk, 96 N. Y. 149; People v. Fitzpatrick, 30 Hun, 493. § 224. Id. The grand jury must consist of not less than sixteen and not more than twenty-three persons, and the presence of at least sixteen is necessary for the transaction of any business. People v. King, 2 Cai. 98; Conkey v. People, 1 Abb. Dec. 418; 5 Park. 31. § 225. For what courts to be drawn, etc.—A grand jury must be drawn for every term of the following courts: 1. The court of oyer and terminer, except in the city and county of New York, and the county of Kings, and except for extraordinary or adjourned terms. 2. The court of general sessions of the city and county Of New York and the court of sessions of the county of Kings; and 3. The city courts whenever an indictment can be there found. People v. Rugg, 98 N. Y. 537; 3 N. Y. Cr. 172. § 226. Id.— A grand jury may also be drawn: 1. For every other court of sessions, when specially ordered by the court, or by the board of supervisors. 2. For the court of oyer and terminer in the city and county of New York, upon the order of a judge of the supreme court elected in the first judicial district. 3 For the court of oyer and terminer, of the county of Kings, upon the order of a judge of the supreme court elected in the second judicial district. People v. Rugg, 98 N. Y. 537; 3 N. Y. Cr. 172; 21 W. Dig. 85. § 227. Id.—If made by the court or a judge thereof, the order for a grand jury must be entered upon its minutes, and a copy thereof filed with the county clerk, at least twenty days before the term for which the jury is ordered. If made by the board of supervisors a copy thereof, certified by the clerk of the board, must be filed with the county clerk, at least twenty days before the term; and when so filed, is conclusive evidence of the authority for drawing the jury. People v. Rugg, 98 N. Y. 537; 3 N. Y. Cr. 172; 21 W. Dig. 85. § 228. Misdescription, etc.-A misdescription of the title of the court in an order for a grand jury does not affect the validity of the order, if it can be plainly understood therefrom what court is intended. § 229. Mode of selecting grand jurors.-The mode of selecting grand jurors is prescribed by special statutes. See Code Civ. Proc. 4 1041, 2293-2301, 3314, 3351; 3 Rev. St. (6th ed.), pp. 1015-1019. See cases under § 223, ante. § 230. If sixteen jurors do not appear, etc.-If at any court of oyer and terminer or court of sessions, except in the counties of Genesee, Orleans and St. Lawrence, there shall not appear at least sixteen persons, duly qualified to serve as grand jurors, who have been summoned, or if the number of grand jurors attending shall be reduced below sixteen, such court must, by order to be entered in its minutes, require the clerk of the county to draw, and the sheriff to summon, such additional number of grand jurors as shall be necessary, and must specify the number required in the order. § 231. Manner of designating, etc. The clerk of the county must forthwith bring into court the box containing the names of the grand jurors, from which grand jurors in the county are required to be drawn; and he must, in the presence of the court, proceed publicly to draw the number of grand jurors specified in the order; and when such drawing is completed, he must make two lists of the persons so drawn, each of which must be certified by him to be a correct list of the names of the persons so drawn by him, one of which he must file in his office, and the other he must deliver to the sheriff. --- § 232. Id. The sheriff must accordingly, in the manner required in respect to the grand jurors originally drawn, forthwith summon the persons whose names are drawn or designated in the list, provided in section 231, to appear in the court requiring their attendance at the time designated, and they must attend and serve as if they had been originally summoned as grand jurors, and subject to the same penalties, unless excused or discharged by the court. § 233. Same.-In the counties of Genesee, Orleans and St. Lawrence, the names of the persons required to complete the grand jury may, in the discretion of the court, be drawn as provided in the last section, or may be publicly designated by the court, from the by-standers or the body of the county. § 234. Summoning the additional grand jurors, etc.-The sheriff must accordingly, in the manner required in respect to the grand jurors originally drawn, forthwith summon the persons whose names are drawn or designated, as provided in the last two sections, who must attend and serve as if they had been originally summoned as grand jurors, and are subject to the same penalties, unless excused or discharged by the court. § 235. When new grand jury may be summoned for the same court. If a crime be committed during the sitting of the court, after the discharge of the grand jury, the court may, in its discretion, direct an order to be entered, that the sheriff summon another grand jury; and the same shall be summoned, in the manner prescribed for grand juries in general. Allen v. People, 57 Barb. 838, § 236. Grand jury, how drawn, when more than a sufficient number attends.—When more than twenty-three persons summoned as grand jurors attend for service, the clerk must prepare separate ballots containing their names, folded as nearly alike as possible, and so that the names can not be seen, and must deposit them in a box. He must then openly draw out of the box twenty-three ballots; and the persons whose names are drawn constitute the grand jury. The names remaining in the box, as well as those drawn, must be returned to the box of drawn grand jurors. Error to swear twenty-four grand jurors. People v. King, 2 Cai. 98. When objection to be taken. Conkey v. People, 1 Abb. Dec. 418. § 237. Who may challenge an individual grand juror.-The district attorney in behalf of the people, and also a person held to answer a charge for crime, may challenge an individual grand juror. § 238. Causes of discharge of the panel.—There is no challenge allowed to the panel or to the array of the gand jury, but the court may, in its discretion, at any time discharge the panel and order another to be summoned, for one or more of the following causes : 1. That the requisite number of ballots was not drawn from the grand jury box of the county; 2. That notice of the drawing of the grand jury was not given; 3. That the drawing was not had, in the presence of the officers designated by law; and 4. That the drawing was not had, at least fourteen days before the court. People v. Hooghkerk, 2 N. Y. Cr. 204; 96 N. Y. 158; People v. Fitzpatrick, 30 Hun, 493; 66 How. 14; 1 N. Y. Cr. 433; People v. Petrea, 30 Hun, 102; 92 N. Y. 128; Dolan v. People, 64 id. 485; Carpenter v. People, id. 483; People v. Duff, 63 How. 374; People v. Harriott, 3 Park 112; People v. Jewett, 3 Wend. 214; United States v. Tallman, 10 Blatchf. 31. § 239. Causes for challenge to grand jurors.—A challenge to an individual grand juror may be interposed, for one or more of the following causes, and for these only: 1. That he is a minor. 2. That he is an alien. 3. That he is insane. 4. That he is the prosecutor upon a charge against the defendant. 5. That he is a witness for either party, if the court is satisfied in the exercise of a sound discretion that he can not act impartially and without prejudice to the substantial rights of the party challenging. 6. That a state of mind exists on his part, in reference to the case or to either party, which satisfies the court, in the exercise of a sound |