207 and 208, he must return to the next court of oyer and terminer of the county, or city court having power to inquire into the offence, by the intervention of a grand jury, (or in the city and county of New-York, to the next court of sessions,) at or be fore 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.

This section is the same as 2 R. S., 3d ed. 796, sec. 28, 29, except in requiring the return of the papers, when the defendant is discharged, as well as when he is held to answer. A due regard for the interests of the public, seems to render it proper, that an examination of the case by the court, should be had, notwithstanding the discharge of the defendant by the magistrate; to the end that it may be submitted to the grand jury, if in the opinion of the court, the magistrate has erred in discharging the defendant. It is, moreover, proper that these proceedings should be preserved as public records, instead of being left, as they may be, under the present system, exposed to loss or to uses prejudicial to an innocent party.

The provisions contained in this chapter, are properly introductory to the subject, and in conformity with the rule declared in sec. 8, p. 4- -6.

§ 221. All public offences prosecuted in a court of oyer and terminer, or in a court of sessions, or in a city court, must be prosecuted by indictment, except as provided in the next section.

§ 222. When, however, the proceedings are had for the removal of justices of the peace, police justices or justices of justices' courts, or their clerks, before a court of general sessions, they may be commenced by an accusation in writing, as provided in sections 116 and

117.

CHAPTER II.

FORMATION OF THE GRAND JURY.

SECTION 223. Grand jury defined.

224-227. For what courts to be drawn.

228. If sixteen grand jurors do not appear, additional number to be ordered.

229, 230. Manner of designating the additional grand jurors.

231. Summoning the additional grand jurors, and compelling their at

tendance.

232. When new grand jury may be summoned for the same court.
233. Manner of drawing the new grand jury.

234. Summoning the new grand jury and compelling their attendance.
235. Number to constitute a grand jury.

236. Grand jury, how drawn when more than a sufficient number attends. 237. Who may challenge the panel or an individual grand juror.

238. Causes of challenge to 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 the panel.

243, 214. Effect of allowing a challenge to an individual grand juror.

245. Appointment of foreman.

246, 247, 248. Oath of the foreman and the other grand jurors.

249. Charge of the court.

250. Retirement of the grand jury.

251. Appointment of a clerk, and his duties.

252. Discharge of the grand jury.

§ 223. A grand jury is a body of men, not less than sixteen nor more than twenty-three in number, 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 public offences committed or triable in the county.

§ 224. 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:

2. The court of sessions of the city of New-York, and the city courts.

§ 225. 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.

These sections are designed to save the necessity of the summoning of a grand jury for all the criminal courts. They direct that it be summoned for the oyer and terminer only, (except in the city of New-York,) and for the city courts. For the oyer and terminer in New-York, and for the sessions in other counties, a grand jury may be summoned upon a special order.

It is believed that under this provision, as many grand juries will be summoned as the public interests require, while the harmony of the system, in reference to the return of complaints by magistrates to certain prescribed courts, as provided in section 220, p. 102, will be promoted by it.

§ 226. If made by the court, the order must be entered upon its minutes, and a copy thereof filed with the county clerk, at least thirty 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 thirty days before the term; and when so filed, is conclusive evidence of the authority for drawing the jury.

§ 227. A misdescription, however, of the title of the court, does not affect the validity of the order, if it can be plainly understood therefrom, what court is intended.

$228. If at least sixteen persons, qualified to serve as grand jurors, and who have been summoned, do not appear, or if the number of grand jurors attending be reduced below sixteen, the court may order the sheriff to summon a sufficient number, (specifying it,) to complete the grand jury.

Taken from 2 R. S., 3d ed., 810, sec. 23.

§ 229. In the city and county of New-York, the names of persons so required to complete the grand jury, must be drawn by the county clerk, in the presence of the sheriff or under sheriff, and of one or more members of the court, from the grand jury box of undrawn ballots, in the manner in which the grand jury was drawn.

§ 230. In any other county, 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.

It frequently happens that the requisite number do not attend; and in that case, the sheriff is directed by the court to summon a sufficient number to complete the panel. In the performance of this duty, he is placed under no restriction, but is at liberty to summon such persons as he may choose. Without intending to impute to any public officer, the wilful neglect or corrupt performance of his duties, it cannot fail to strike the common sense of every man, as somewhat unaccountable, that the law, after having made the most full provision for drawing the jury by lot from the county box, in the presence of three sworn public officers, and after imposing upon them every restraint adapted to the prevention of unfairness,

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