
    [No. 10,501.
    In Bank.]
    PEOPLE v. GALLAGHER.
    Drawing of Grand Jury — Notice. — If the officers required by § 215 of the Code of Civil Procedure, to he present at the drawing of the grand jury, are actually present, it is immaterial whether any notice is given to them by the clerk.
    Id. — Constitutional Law — County Judge — Superior Judge.— It would seem that it was intended by the new Constitution (Schedule, § 3) that the Superior Judge should succeed to the duty of the County Judge in respect to the drawing of jurors.
    Id.—Id.—Id.— Partial Repeal of Statute.—Section 215 of the Code of Civil Procedure is not inconsistent with the Constitution, except in the provision requiring the presence of the County Judge; and, with this exception, it continues in operation by virtue of'§ 1 of the Schedule.
    Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Superior Court of Placer County. Myers, J.
    
      John M. Fulweiler, for Appellant.
    
      Attorney-General, for Respondent.
   By the Court (from the bench) :

The defendant, not having been held to answer before the grand jury, moved, at the proper time, that the indictment be set aside upon the grounds: First, that notice of the drawing of the grand jury was not given as required by law; second, that the drawing was not had in the presence of the officers designated by law, etc.

The motion was denied, and defendant excepted.

The drawing was regular. Verbal notice alone was given by the clerk to the Superior Judge and Sheriff, but inasmuch as the object of the provision requiring notice is only that those officers may be present, and as the case shows that both were, in fact, present when the drawing was had, it is entirely immaterial whether any notice was given them.

Section 215 of the Code of Civil Procedure requires that the clerk shall notify the Sheriff and County Judge. It would seem that it was intended that the Superior Judge should succeed to the duty of the County Judge in respect to the drawing of jurors. (Const. Schedule, § 3.) But even if there be doubt of this, the statute, in respect to the mode of drawing, is not “ inconsistent ” with the Constitution, except in the particular that there is no longer a County Judge. In other respects, it continues in Operation and effect by virtue of section one of the Schedule. It follows that the grand jurors were regularly drawn, the cleric and Sheriff being present.

Judgment and order affirmed.  