The People vs. Wintermute.
To reach this alleged error, it seems to have been deemed proper and necessary to go back of all matters involving the merits, to overlook all that transpired during the trial, and not even to pause over the force and effect of the plea to the indictment. The plea in bar was an uncompelled, and a voluntary act, on the merits and traversing the facts. Prior to it, there had been no motion to set aside the indictment — no plea in abatement — no demurrer. What was, or was not, waived by these omissions and by the free choice of the plea of "not guilty," appears not to have been considered.
The pith of the alleged error, consists, it is said, in an irregularity in the formation of the grand jury, by which irregularity the presence on the panel of a "disqualified grand juror" was brought about.
Here at once arises the divergence of opinion; for I respectfully affirm that the grand jury was lawfully constituted, and that no "disqualified" person was a member of it.
Indeed, I think I may venture to go still further, and to affirm that no accused party in any- known criminal action, ever had a fairer or fuller opportunity for asserting his legal rights upon the organization of a grand jury, than was accorded to this party. In fact, the majority of the court candidly admit that if the Statute of 1862-3 was not then in force, the court below, by its rulings, "gave the defendant all the rights to which he was entitled." By which, of course, is meant that the court below, in the organization and in the challenging of the grand jury, accorded to the accused all the rights, and afforded to him all the opportunities, to which he was entitled by the common law. In the interests of justice and the due administration of law, this broad concession is of the highest value and most significant importance. And whether that statute was, or was not, in force, it follows by the irresistible strength of logic and reason, that if those sections of that code which relate to the challenging of jurors, were merely declaratory of the common law, conferring no new right and entitling the defendant to no privileges which he would not have enjoyed at common law, then there is an end to all doubt or question, and the court below did, there-
