
    THE PEOPLE, Respondent, v. JAMES STUART, Appellant.
    Depositions as Evidence. — The depositions of witnesses taken before a magistrate, npon a criminal charge, may be used before a grand jury.
    
       Challenge to Panel Insufficient Grounds. — No regular panel having been drawn and summoned, the Court ordered thirty-six jurors to be summoned, which was done, and twenty-seven of them appearing, the Court caused their names to be placed in a box, of which twelve were drawn to constitute a trial jury. Held not to be ground for challenge by the defendant, to the whole panel.
    Indictment, Transfer of. — An indictment may be transferred from the Court of Sessions to the District Court, without the indorsement of the Clerk of the Court of Sessions.
    
      
       Trial — Personal Bights of Prisoner. — If the prisoner objects that he was not present at the time of trial, or the rendition of the verdict, or the passing of the sentence, he must prove his absence.
    Appeal from the District Court for Trinity County.
    The opinion contains a statement of the case.
    
      Crockett & Page, for Appellant.
    
      *lst. The Court erred in refusing to set aside the  indictment on the motion of the defendant. The Act to Eegulate Proceedings in Criminal Cases, passed May 1st, 1851, provides, in section 278, for what causes indictments may be set aside; the first of which is, “where it is not found indorsed and presented as prescribed in this Act ” In the case at bar the indictment was found solely on the depositions of witnesses taken before the committing magistrate. The witnesses were not examined before the grand jury, though they were within the county, and might have been called to testify. Section 209 of the same Act is relied upon, on behalf of the People, to establish that such proof was sufficient, and that the witnesses need not be called. But, though this section contemplates that such depositions may in some cases be admissible, it is scarcely probable that it was designed to dispense with the oral examination of the witnesses, when the witnesses were at hand and could be produced without difficulty. In matters affecting life and liberty, the demeanor of the witness under examination may become a matter of the utmost consequence to the accused, • and if the grand jury, even in capital cases, may act solely on the depositions taken before the committing magistrate, and not trouble themselves to examine the witnesses, the indictment becomes a mere idle form, and the accused is deprived of the benefit of a new investigation by the grand jury. It is quite proper that the depositions taken before the magistrate should be submitted to the grand jury, so that they may be fully informed of what the witnesses have testified to, and may detect any variance between the depositions and the oral statements of the witnesses, and it may be, if the witnesses are beyond the jurisdiction of the Court, or have died since their depositions were taken, such proof might be admissible. But we think a fair interpretation of the Act will not justify the conclusion, that the grand jury may refuse to call the witnesses, though within reach of their process, and predicate the indictment solely on the depositions taken before the magistrate. If we are right in this, the District Court erred in refusing to set aside the indictment for this cause.
    
      2d. The Court erred in denying the defendant’s  motion to *set aside the panel of the trial jury. No jury had been drawn for the term, as required by law (Statutes of 1852, p. 107). The Act is very specific in prescribing how jurors are to be selected and empaneled; the 16th section provides that, when, from any cause, it shall become necessary during the term, the Court may order the Sheriff to summon, either immediately or for a day fixed, from the citizens of the county, a sufficient number of persons to complete the trial jury, or form a new trial jury, as the case may be. The question is, if no regular jury has been drawn as required by law, whether, under this section, the Court can supply the omission, by causing a jury to be summoned, or whether it is simply intended to cases in which the regular panel has been exhausted, or from some accidental cause, cannot be made available? The latter is our construction of the Act. We insist that, upon a fair construction of all its provisions, it was manifestly intended that the greatest particularity should be observed in selecting the jury, so as to secure the utmost impartiality. The names of fifty persons are to be taken from the assessment roll, by the County Judge, Clerk and Sheriff, and those names are to be placed in a box, and twelve of them drawn out, which shall constitute the trial jury. Notice is to be given one week before the drawing, and a list of the names is to be certified by the County Judge, Clerk and Sheriff. This is the only mode known to the law, by which a jury can be impaneled, unless the Judge has the power, under the 16th section, to cause a jury to be summoned, as was done in this case. That he has such power, when the regular panel has been exhausted, or has been set aside on challenge, cannot be doubted; but if there has been no regular panel — if the County Judge, Clerk and Sheriff have wholly neglected their duty, and have made no effort to impanel a jury, the Court, in our judgment, cannot supply the omission. If it can, the Act prescribing with such minuteness how the jury is to be formed, becomes a mere nullity, to be observed or not, as may suit the convenience or the caprice of the County Judge, Clerk and Sheriff. When the Act prescribes the mode of selecting the jury, it excludes all other modes, and when it says that, if it shall become *necesary 
      “during the term,” the Court may order to be summoned, a sufficient number to complete the trial jury, or form a new trial jury, as the case may be, its phraseology plainly imports that this power is not to be used to supply the place of a regular panel, but only to make up the deficiency, after the regular panel has been exhausted, or set aside for cause. Hence it is a power to be exercised, only during the term, and to complete the trial jury, or to form a new trial jury, after the regular panel has been exhausted, or set aside. It appears to us that this is so palpably the intention of the 16th section, as to leave no room for doubt.' If so, the District Court had no power to empanel the jury, as was done in the case at bar, and ought to have sustained the defendant’s challenge. But if it be conceded that the Court had the power, under the circumstances, to summon a jury, it had no authority to cause twenty-seven names to be placed in a box, and to draw out twelve of these to constitute the panel. The law confers no authority upon the Court to select a jury in that way. The jurors should have been called in the order in which they were summoned, until the requisite number was obtained. For this reason, also, the challenge ought to have been sustained.
    3d. The indictment was improperly in the District Court, not having been certified from the Court of Sessions in the manner required by law.
    4th. The indictment ought to have been set aside, because the grand jury was not lawfully impaneled. For these reasons the judgment ought to be reversed.
    The defendant, by leave of Court, submits the following additional points:
    1st. Everything is to be presumed in favor of the prisoner, and the record should show affirmatively that every requirement of the law has been complied with. It is admitted that the witnesses whose depositions were read before the grand, jury, were within the county, and in reach of the process of the Court. (§ 209, 210, Proceedings in Criminal Cases.)
    2d. The defendant does not appear, from the record, to have been present at the trial or at the finding of [222J the verdict. *(Proceedings in Criminal Cases, § 415, Dunn v. Com. of Penn., 6 Penn. Rep.; Art. VI, Amend, to Con. TJ. S.)
    8d. The verdict was ren lered on the 20th April, 1854, and sentence passed on the 22d April, 1854. (Sec. 448.)
    The Court passed sentence without asking the prisoner if he had anything to say why judgment should not be pronounced against him, or advising him of what offense he had been convicted. (Sec. 456.)
    The judgment is erroneous in this, that it assumes to fix the day of execution, whereas the warrant only can fix the time of execution. (Sec. 463, 466.)
    
      Wm. M. Stewart, Acting Attorney-General, for Respondent.
    As to the first reason assigned by appellant why the judgment in this case should be reversed—
    There would be no reason for the provision in the statute that depositions should be reduced to writing, and when by question and answer, as provided in Compiled Laws, p. 443, § 162; see § 2, p. 449. Nor for the further provision, that the same might be used before the grand jury; p. 449, § 209, unless the said depositions were competent evidence before the grand jury. And when the point is admitted that such depositions are legal and proper testimony to be used before the grand jury, the objection is conceded, for the defendant had no reason to complain because the grand jury did not receive all the testimony against him which they might have procured.
    And as to the second reason assigned by the appellant why this judgment should be reversed, on the ground that the trial jury were not drawn and impaneled according to law, in this, that no trial jury was drawn for the term of the District Court of Trinity County, at which this cause was tried, it will be seen by p. 355, § 16 of the Compiled Laws, that the Court may, when, from any cause, it shall become necessary during the term, order the sheriff, etc., to summon a jury, etc. The whole matter is left with the Court as to the sufficiency of the cause why he has made such order, and only abuse of discretion would be error.
    And here we would beg leave to * suggest to the  Court the method pursued in this case is the only practicable way of selecting a jury in the mountain counties, on account of the transitory and unsettled condition of society, and the great difficulty in finding persons taken indiscriminately from the assessment roll of the county.
    And as to the third cause why the said judgment should be reversed, whérein error in the impaneling of the grand jury is assigned, no objection or challenge was made to the panel, and the offense is charged to have been committed on the 2d day of April, A. D. 1854, about the commencement of a term of the Court of Sessions of Trinity County, the first Monday of that month being the day fixed by law for the commencement of said Court. The County Judge in that case could not have been advised of the necessity of a grand jury for this particular case, in time to have ordered one prior to the sitting of the Court, and therefore very properly followed the provisions of Compiled Laws, p. 354, § 11, in making an order for a grand jury.
    The objection that the indictment was not properly certified from the Court of Sessions to the District Court, is not supported by the record. On the contrary, the certificate of the Clerk of the Court of Sessions appears full and complete.
    As to the objection urged by the appellant, that it does, not appear affirmatively from the record that the defendant was present during the trial: It is admitted that the defendant should have been present during the trial, but the statutes do not require that such facts should be entered- upon the minutes of the Court at each meeting thereof. If the defendant had not been allowed to be present, he ought to have objected, and his objection should have appeared in the bill of exceptions. It was only necessary for the purposes of this appeal for a sufficient portion of the record to come up to enable the Court to decide the points taken in the bill of exceptions. Error in mere technical points or matters of practice, should appear affirmatively. (See Compiled Laws, p. 501, § 601. Any other rule in the present unsettled condition of our practice, would defeat the ends of justice and the proper administration of the law.  In original trials, the accused should have the * benefit of every reasonable doubt and presumption, but in all cases of appeal he could not. It is incumbent upon the appellant to show error affirmatively, otherwise the appellant might bring up such part of the record as would suit his purpose, and leave some material part thereof, for want of which the case would be reversed. But we contend that the record, taken as a whole, shows that the defendant was present during the whole trial.
    
      
       Approved in People v. Vance, 21 Cal. 403; People v. Williams, 43 Cal. 349. Cited 43 Ala. 56; 1 Green Cr. B. 415; 51 Miss. 727.
    
    
      
       Cited in Px parte Gibson, 31 Cal. 627.
    
   Mr. Justice Wells

delivered the opinion of the Court.

Mr. Ch. J. Murray and Mr. J. Heydeneeldt concurred.

The appellant was indicted for murder by the Grand Jury of Trinity County, and the indictment was transmitted by the Clerk of the Court of Sessions to the District Court for said county. In the District Court, the defendant moved to set aside the indictment:

1st.. Because the grand jury had no other proof before them, except the depositions of the witnesses taken by the Committing Magistrate, the witnesses themselves being within the county, but not having been called before the grand jury.

2d. Because the grand jury was not drawn and summoned at a regular session of the Court of Sessions, nor was any notice given of such drawing.

The Court overruled the motion and the defendant excepted.

No regular panel, fon a trial jury having bean drawn and summoned, as required by law, for that term, tbe Court ordered thirty-six jurors to be summoned, wbieb was done, and twenty-seven of them appearing, tbe Court caused tbeir names to be placed in a box, of which twelve were drawn, to constitute tbe trial jury. Tbe defendant challenged tbe whole panel, on tbe ground that tbe Court bad no power:

1st. To cause a jury to be summoned under tbe circumstances; nor,

2d. To select twelve out of tbe twenty seven by ballot, to compose tbe trial jury.

But tbe Court overruled-the challenge, and the defendant excepted.

The defendant was convicted, and has appealed to this Court.

. *The first ground assigned as error is, that the Court refused to set aside tbe indictment, which, it is insisted, was not found indorsed and presented in tbe manner prescribed in tbe Act (section 278), and this is predicated upon tbe assumption that tbe indictment was found solely on tbe depositions of witnesses taken before tbo committing magistrate, while such witnesses were then present in tbe county, and could have been called upon to testify; and it is said, that in a case involving life and liberty, the' humane rule of law, that tbe accused should have tbe right to confront bis accuser, should apply. Tbe answer is direct and conclusive. It does not satisfactorily appear from tbe record, that such is tbe fact, and even if it were, tbe objection could not avail. Tbe grand jury is a secret, as well as a legal tribunal. But tbe accused never appears before it. His right to confront bis accuser is preserved upon bis trial, where be has every opportunity to examine tbe demeanor of tbe witnesses and to subject them to cross-examination; it matters not, therefore, whether tbe grand jury find tbeir bill upon depositions or upon the oral testimony of witnesses; it does not affect tbe rights of tbe prisoner in any way; and I am of tbe opinion, upon examination of the statutes, that it was the intention of the law-makers to admit the depositions of witnesses taken before a magistrate upon a criminal charge, to be used before a grand jury. Such is the construction which must be given to section 278 of the Act, when considered together with sections 209 and 210 of the same statute.

The second point raised by the appellant is founded upon the exception raised to the trial jury, and we are referred to the statutes of 1852, p. 107, prescribing how jurors are to be selected and impaneled. The exception is not well taken. By reference to section 16, page 355, Compiled Laws, it will be found that full power is conferred upon the Court to enter such an order as was entered in this case. It provides that, “When from any cause, it shall become necessary during the term, the Court may order the Sheriff to summon, either immediately or for a day fixed, from the citizens of the county, but not from the bystanders, a sufficient number of persons to * complete the trial jury, or form a new trial jury, as the case may be.”

The next objection proposed by the appellant is that the indictment was not properly certified from the Court of Sessions to the District Court. This is not supported by any disclosure of the proceedings in the case on the record before us; and even should the fact be as stated, we would still adhere to the opinion delivered in the case of The People v. Thompson, at this term, post 238, for a like capital offense, by the Chief Justice, wherein he says:

“It is said the indictment was not transferred from the Court of Sessions to the District Court, in the manner pointed out by the statute.
“This objection was not taken upon the trial, and if it had been, we do not think it would have been material. The Court would have cured the error, by directing the Clerk to indorse the same.
• “The 309th section of the Act Regulating Criminal Proceedings, provides: ‘When an indictment is found in the Court of Sessions for murder, manslaughter, etc., it shall be transmitted by tbe Clerk to tbe District Court, sitting in tbe county, for trial, except,’ etc.
“The Clerk of tbe District Court is, by law, tbe Clerk of tbe Court of Sessions, and tbe indictment found in tbe District Court, in tbe possession of tbe proper officers, would not be invalidated, because not indorsed by himself, as Clerk of another Court. Tbe intention of tbe statute was simply to point out tbe place where indictments for a certain character of offenses should be kept, and were triable. ”

Another point insisted upon is, that it does not appear from record that tbe defendant was present at the trial, or at tbe rendition of tbe verdict. We think that sufficient is disclosed by tbe record to show that this, like many other points, is merely technical and evasive, to enable tbe accused to go unwbipt of justice.

Tbe language of tbe Judge, when passing sentence, and to which no exception was taken, is a strong circumstantial proof to confirm tbe presumption that tbe defendant was present, and *that all tbe legal forms required were strictly complied with. If they were not- — if tbe prisoner was absent at tbe time of trial, or tbe rendition of tbe verdict, or tbe passing of tbe sentence, be bad an abundant opportunity to prove it, and should have done so.

From a careful examination of tbe whole case, we have no reason to doubt that tbe defendant bad a fair trial; that tbe Court and jury performed their responsible duties in a lawful manner, and that tbe verdict is correct. Tbe objections urged with great skill and ingenuity on tbe appeal have failed to satisfy us that there is any error in tbe judgment, and it must, therefore, be affirmed.  