dissenting:
The majority opinion appears to hold that the indictment in this case is the product of a de facto grand jury. Reliance is placed in part upon cases in which a grand jury continues its operation into a succeeding' term of court “without an order of the court” to do so. The leading case of People v. Hall, 16 Ill.2d 223, 157 N.E.2d 26, 75 A.L.R.2d 541, is cited in support of the majority view. In the case under consideration there were orders, but they were orders that the grand jury shall die on certain days.
On March 17, 1964, in its formation of the grand jury, the trial court instructed as follows: “You have been selected by the court as members of and now constitute1 the statutory grand jury for the February 1964 term of the district court of Arapahoe County, State of Colorado.” In effect the court advised the jury that it would have existence and should operate during the February 1964 term and that at the conclusion of that term its life would automatically expire. It should be noted that during the February term the court entered no order extending the life of the grand jury; in fact, no attempt was made to continue its existence and operation until the beginning of the January term 1965. A term had intervened between the February 1964 term and the January 1965 term.
At the beginning of the January 1965 term the court stated in part the following at an en banc session presided over by the Honorable Marvin W. Foote:
“One other thing, the grand jury now in session has not completed its work, and it is, therefore, the order of Court that it remain in session until it is prepared to report, and the appointment of a grand jury for the calendar year 1965 will be deferred until the present grand jury has completed its investigation and made its report. The Honorable Robert B. Lee will continue to be the presiding judge in charge of the grand jury.” (Emphasis supplied.)
*214As the presiding judge charged with the duty of supervising the grand jury, Judge Lee entered an order on March 12, 1965, extending the operation of the jury to March 25, 1965.
Arapahoe County is a county of the first class. “In counties of the first class the court shall cause to be drawn and summoned a grand jury to attend at the sitting of such court at the first term of such court in each year . . .” C.R.S. 1963, 78-6-1. (Emphasis supplied.) By the statute the grand jury is an adjunct of the court at the first term of such court in each year and not for succeeding terms, and certainly not for the following year. People v. Brautigan, 310 Ill. 472, 142 N.E. 208; Ritchie v. Commonwealth, 229 Ky. 654, 17 S.W.2d 738; State v. Davis, 107 N.J.L. 199, 152 Atl. 782.
By the terms of the statute, a grand jury could be a de jure body only during the first term of court and possibly a de facto body only during the remainder of that court year. Certainly, at the termination of the court year the grand jury is dissolved by operation of law. Petty v. State, 224 Ala. 451, 140 So. 585.
If the grand jury in this case had no jurisdiction as a de jure body to continue its work into succeeding terms after the expiration of the court year, it is diffir cult to see how jurisdiction could vest in the same body as a de facto accessory to the court. Jurisdiction cannot be vested in the inquisitorial body by consent. Want of jurisdiction of a grand jury cannot be waived and jurisdiction cannot be conferred by consent or agreement. Ritchie v. Commonwealth, supra.
But the majority opinion has even a greater hurdle to clear. In this case the judge presiding over the grand jury had entered an order extending its life to March 25, 1965. Its demise occurred at the conclusion of March 24, 1965. Maynes v. Gray, 69 Kan. 49, 76 Pac. 443, 105 Am. St. Rep. 146, 2 Ann. Cas. 518. Assuming that the court had the power to extend the existence of the grand jury to that date, on and after that date the court *215could not breathe life into the corpse when it had decreed that it should expire before March 25th and it had so expired. McDonald v. Colden, 41 N.Y.S.2d 323.
A grand jury constitutes a part of the court for the first term of such court in that year in which it is summoned. This is the clear purport and intent of the statute. People v. Gibbs, 413 Ill. 154, 108 N.E.2d 446. The court, in effect, by its order said that “to March 25th” the grand jury should live and on that date it should suffer total and permanent cessation of all its vital functions — it should be dead. There is no de facto existence in a dead body. Hence, the attempt of the trial court to resuscitate the grand jury at a time when rigor mortis had set in came too late.
I would address some remarks to the specially concurring opinion. In my view the order of the en banc session presided over by Judge Foote — the order upon which Mr. Justice Moore relies — was an invalid order having no force and effect.
C.R.S. 1963, 37-4-18, provides:
“In any district court composed of more than one judge, the judges may sit en banc at such time as they may determine, for the purpose of making rules of court, the appointment of a clerk, the approval of the appointments of deputies, the approval of official bonds and such like ministerial duties, but for no other purpose whatever; and the court so sitting en banc shall have no power to review any order, decision or proceeding of the court held by any judge sitting separately.” (Emphasis supplied.)
It is obvious upon reading this section that the judges sitting en banc could act in only very limited areas and had no authority to act in respect to the operation and continued life of the grand jury. The en banc order designating Judge Lee to continue as the presiding judge of criminal matters and in charge of the grand jury was proper. That part of the order affecting the continued existence of the grand jury was wholly with*216out the ambit of the statute. People ex rel. Rucker v. District Court, 14 Colo. 396, 24 Pac. 260.
Mr. Justice Schauer authorizes me to say that he joins in this dissent.