discretion that he can not act impartially and without prejudice to the substantial rights of the party challenging.

Dawson v. People, 25 N. Y. 405; People v Jewett, 3 Wend. 314; 6 id. 386; People v. Hooghkerk, supra. See cases cited under last section. State v. Hamlin, 47 Conn. 95; 36 Am. Rep. 54; State Easter, 30 Ohio St. 542; 27 Am. Rep. 478; State v. Flemming, 66 Me. 142; 22 Am. Rep. 552; Musick v. People, 40 ill. 268; Reich v. State, 55 Ga. 73; 21 Am. Rep. 265; Hardin v. State 22 Ind. 347.

§ 240. Manner of taking and trying challenges.-Challenges to individual grand jurors may be oral, and must be entered upon the minutes and tried by the court in the same manner as challenges in the case of a trial jury.

See 1180 of Code of Civ. Pro.; Weston v. People, 6 Hun, 140; People v. Tweed, 11 id. 195.

§ 241. Decision upon the challenge. The court must allow or disallow the challenge, and the clerk must enter its decision upon the minutes.

§ 242. Effect of challenge to grand juror, etc.- If a challenge to an individual grand juror be allowed for any of the causes mentioned in subdivisions one, two or three of section 239, he must be forthwith discharged from the grand jury. If such challenge be allowed for any of the causes mentioned in subdivisions four, five or six of section 239, the juror challenged can not be present at or take part in the consideration of the charge against the defendant mentioned in or who interposed the challenge, or in the deliberations or vote of the grand jury thereon.

§ 243. Violation of last section. —The grand jury must inform the court of a violation of the last section, and the same is punishable by the court as a contempt.

People ex rel. Munsell v. Oyer, etc. 101 N. Y. 251; 4 N. Y. Cr. 75; 3 How. U. S. 418; aff'g, 36 Hun, 280; 3 N. Y. Cr. 216.

§ 244. Appointment of foreman. From the persons summoned to serve as grand jurors, and appearing, the court must appoint a foreman. The court must also appoint a foreman when a person already appointed is discharged or excused before the grand jury are dismissed.

§ 245. Oath of the foreman, etc.-The following oath must be administered to the foreman of the grand jury: "You, as foreman of this grand jury, shall diligently inquire and true presenment make, of all such matters and things as shall be given you in charge; the

counsel of the people of this state, your fellows' and your own you shall keep secret; you shall present no person from envy, hatred or malice; nor shall you leave any one unpresented through fear, favor, affection or award, or hope thereof; but you shall present all things truly as they come to your knowledge, according to the best of your understanding. So help you God!"

§ 246. Id. The following oath must be immediately thereupon administered to the other grand jurors present: "The same oath which your foreman has now taken before you on his part, you and each of you shall well and truly observe on your part. So help you God!"

§ 247. Id. If, after the foreman and the grand jurors then present are sworn, any other grand juror appear, and be admitted as such, the oath, as prescribed in section 245, must be administered to him, commencing, You, as one of this grand jury," and so on, to the end.

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§ 248. Charge to the grand jury.—The grand jury being impaneled and sworn, must be charged by the court. In doing so, the court must read to them the provisions of this Code, from section 252 to section 267, both inclusive, or give them a copy thereof, and must give them such information as it may deem proper as to the nature of their duties, and any charges and crimes returned to the court, or likely to come before the grand jury. The court need not, however, charge them, respecting violations of a particular statute, excepting when so requested by the district attorney.

§ 249. Retirement of the grand jury.-The grand jury must then retire to a private room and inquire into the offenses cognizable by them.

People v. Sellick, 4 N. Y. Cr. 329; People ex rel. Pickard v. Sheriff, etc. 11 Civ. Pro. 172.

§ 250. Appointment of a clerk, and his duties.-The grand jury must appoint one of their number as clerk, who is to preserve minutes of their proceedings (except of the votes of the individual members on a presentment or indictment), and of the evidence given before them.

People v. Baker 10 How. 567.

§ 251. Discharge of the grand jury.-The grand jury, on the completion of the business before them, must be discharged by the

court; but whether the business be completed or not, they are discharged by the final adjournment of the court.

People ex rel. Pickard v. Sheriff, etc. 11 Civ. Pro. 184; People v. Fitzpatrick, 30 Iun, 493; 66 How. 14.

§ 252. Power of grand jury, etc.-The grand jury has power, and it is their duty, to inquire into all crimes committed or triable in the county, and to present them to the court.

People v. Equitable Gas Light Co. 6 N. Y. Cr. 191; People v. Heffernan, 5 Park. 393; People v. Horton, 4 id. 222; People v. Page, 3 id. 600; French v. People, id. 114; People v. Hyler, 2 id. 566.

§ 253. Foreman may administer oaths.-The foreman may administer an oath, to any witness appearing before the grand jury.

§ 254. Definition of an indictment.-An indictment is an accusation in writing, presented by a grand jury to a competent court, charging a person with a crime.

See § 275, 956, post. People v. Dumar, 106 N. Y. 509; People v. Dunn, 53 Hun, 384; People v. White, 24 Wend. 570; People v. Gates, 13 id. 317; People v. Stark, 59 Hun, 58; People v. Jeffrey, 38 N. Y. St. Rep. 315.

§ 255. Evidence, etc., before the grand jury.-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 8.

People v. Dunn, 53 Hun, 384; People v. Briggs, 60 How. 17; People v. Hyler, 2 Park. 566; People v. Tinder, 19 Cal. 539; United States v. Kilpatrick, 16 Fed. Rep. 765; Same v. Reed, 2 Blatchf. 435.

§ 256. Id. The grand jury can receive none but legal evidence.

Reception of improper evidence can not be raised by plea. 11 W. Dig. 386. People v. Dunn, 53 Hun, 384; People v. Briggs, 60 How. 17; People v. Sellick, 4 N. Y. Cr. 334; People v. Singer, 18 Abb. N. C. 101, n; People v. Hyler, 4 N. Y. Cr. 334; United States v. Kilpatrick, 16 Fed. Rep. 765; Hope v. People, 83 N. Y. 418.

§ 257. Grand jury not bound to hear, etc..-The grand jury is not bound to hear evidence for the defendant; but it is their duty to weigh all the evidence submitted to them, and when they have reason to believe that other evidence, within their reach, will explain away the charge, they should order such evidence to be produced; and for that purpose, may require the district attorney to issue process for the witnesses.

Hope v. People, 83 N. Y. 418; People v. Dunn, 53 Hun, 384; People v. Singer, 18 Abb. N. C. 96; 5 N. Y. Cr. 2.

§ 258. Degree of evidence, to warrant an indictment. The grand jury ought to find an indictment, when all the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.

What evidence sufficient. People v. Hyler, 2 Park. 570. People v. Dunn, 53 Hun, 384; People v. Price, 53 Hun, 185; 6 N. Y. Cr. 144; People v. Baker, 10 How. 567.

§ 259. Grand jurors must declare their knowledge as to commission of a crime. If a member of the grand jury know, or have reason to believe, that a crime has been committed, which is triable in the county, he must declare the same to his fellow jurors, who must thereupon investigate the same.

People v. Dunn, 53 Hun, 384.

§ 260. Grand jury must inquire, etc.-The grand jury must inquire,

1. Into the case of every person imprisoned in the jail of the county, on a criminal charge, and not indicted;

2. Into the condition and management of the public prisons in the county; and

3. Into the willful and corrupt misconduct in office, of public officers of every description, in the county.

People v. Dunn, 53 Hun, 384.

§ 261. Grand jury entitled to access to public prisons, etc.They are also entitled to free access, at all reasonable times, to the public prisons, and to the examination, without charge, of all public records in the county.

People v. Dunn, 53 Hun, 384.

§ 262. When and from whom they may ask advice, etc.-The grand jury may in any case ask the advice of any judge of the court, or of the district attorney of the county.

People v. Dunn, 53 Hun, 384; People v. Sellick, 4 N. Y. Cr. 329.

§ 263. Id. Whenever required by the grand jury, it shall be the duty of the district attorney of the county to attend them for the purpose of examining witnesses in their presence, or of giving them advice upon any legal matter, and of issuing subpoenas or other process for witnesses.

People v. Dunn, 53 Hun, 384.

§ 264. Id.-- The district attorney of the county must be allowed at all times to appear before the grand jury, at his request, for the

purpose of giving information relative to any matter before them, but no district attorney, officer, or other person, shall be present with the grand jury during the expression of their opinions, or the giving of their votes upon any matter.

People v. Dunn, 53 Hun, 384.

§ 265. Secrets of the grand jury to be kept.- Every member of the grand jury must keep secret whatever he himself, or any other grand juror may have said, or in what manner he, or any other grand juror, may have voted, on a matter before them.

People ex rel. Pickard v. Sheriff, etc. 11 Civ. Pro. 179; People v. Dunn, 53 Hun, 384.

§ 266. Grand jury, when bound to disclose the testimony of a witness.— A member of the grand jury may, however, be required by any court, to disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court; or to disclose the testimony given before them by any person upon a charge against him for perjury in giving his testimony, or upon his trial therefor.

People v. Hulbut, 4 Denio, 133; People ex rel. Pickard v. Sheriff, etc. 11 Civ. Pro. 179; People v. Dunn, 53 Hun, 384.

§ 267. Grand juror not to be questioned for his conduct, etc.-A grand juror can not be questioned for anything he may say, or any vote he may give, in the grand jury relative to a matter legally pending before the jury, except for a perjury of which he may have been guilty, in making an accusation or giving testimony to his fellow jurors.

Reflections on jurors will be punished as contempt. Ex. p. Van Hook, 3 C. H. Rec. 64; Ex. p. Spooner, 5 id. 109. See People ex rel. Munsell v. Ct. of O. and T. 101 N. Y. 245; àff'g 36 Hun, 277; People v. Dunn, 53 Hun, 384.