Page:Federal Reporter, 1st Series, Volume 3.djvu/294

 not put into the box by any competent authority and not drawn from it. But his name was in the venire, and there is no imputation that it was put there in bad faith. There is no light thrown upon the subject as to how, or why, or wherefore, or under what circumstances it was put there. His name was regularly in the venire, and the marshal had no choice but to serve him, and it is not contended that he had not the qualifications required by law.

He assisted in finding the indictment, and it is before the court. Now, I think that this fact comes within the category of mere irregularities, which will not be permitted to vitiate the entire action of the grand jury, and I therefore say that, so far as that point is concerned, I feel warranted in overruling it.

But I wish to add, in this connection, that the proceedings of the grand jury are wholly ex parte. The defendant has no right to be present himself or by counsel; he has no right to send witnesses to the grand jury, and the grand jury cannot, without committing perjury, disclose anything that is at all material, or that has transpired in regard to this case. Doing so would involve the crime of perjury. The district attorney, if he be in possession of any facts in that connection, cannot disclose them without a gross breach of duty. Whatever occurs, then, in regard to the constitution of the grand jury, is really a matter of very little importance to the defendant. It is fairly to be supposed that if one grand jury, made up in good faith, has found an indictment, another grand jury, upon the same testimony, would find another indictment; so that the only benefit resulting to the defendant, even if that be a beneficial result, would be a delay before the period of trial.

I therefore regard any defect in the organization, summoning, and empanelling, and the proceedings of a petit and grand jury, in a very different light. And if, in this case, there were a petit jury, in regard to any of whom any such defect existed, as is claimed to exist, against those of the grand jury, while I would not say in advance what my judgment would be, I feel bound to say that I should regard them as having a very different amount of gravity from any of the