Opinion
Appeal from the County Court of San Joaquin County.
The defendant was indicted for the crime of housebreaking. The indictment was found on the 10th day of September, 1874. The Act, approved March 26, 1872, permitted the Judge of the County Court of San Joaquin County to appoint a short-hand official reporter, and also allowed said Judge, on the request of the District Attorney, to direct such reporter to appear before the grand jury and take down the evidence of witnesses. On the 7th day of September, the Judge made such order, and, in compliance therewith, E. E. Hood, the official reporter of the Court, was before the grand jury which found the indictment, taking down the evidence while the defendant's case was under examination. The defendant moved to set aside the indictment, because Hood was so present. The Court denied the motion. The defendant was convicted, and appealed.
COUNSEL
J. H. Budd and S. L. Terry, for the Appellant.
John L. Love, Attorney-General, for the People.
JUDGES: McKinstry, J. Neither Mr. Chief Justice Wallace nor Mr. Justice Rhodes expressed an opinion.
OPINION
McKINSTRY, Judge
The County Court erred in denying the motion of defendant to set aside the indictment, on the ground that a person other than the members of the grand jury, the Judge, the District Attorney and the witnesses actually under examination, was permitted to be present during the session of the grand jury when the charge embraced in the indictment was under consideration.
The Act of March 26, 1872, (statutes 1871-2, p. 551,) was repealed, constructively by section 269 of the Code of Procedure, (amendments to Code of Civil Procedure, twentieth session, p. 288,) and by sections 1, 2, 3, 4 and 5, of an act to amend certain sections of, and to add sections to the same code (approved March 30, 1874, see " amendments," p. 400,) which revise the whole subject-matter of former acts respecting short-hand reporters, and are a substitute for all such former acts, general or special. And the Act of March 26, 1872, is necessarily repealed by section 253 of " An Act to amend the Code of Civil Procedure," approved March 24, 1874, (amendments twentieth session, p. 395,) and by section 6 of " An Act to amend sections 270 and 271 of, and to add sections 272-3-4 to the Code of Civil Procedure ," (amendments twentieth session, p. 403.)
Judgment and order reversed and cause remanded, with directions to the Court below to set aside the indictment.