Defendant was indicted by the grand jury of the county of Sacramento for an assault with a deadly weapon with malice aforethought, while undergoing a life sentence in the state prison at Folsom — an offense defined by section 246 of the Penal Code. He was tried and found guilty and the death penalty was imposed. He has appealed from the judgment and from the order denying his motion for a new trial.
The defendant was tried under an indictment found and returned on the tenth day of August, 1905. He had been indicted by a previous grand jury on the eleventh day of April, 1905. His demurrer to this earlier indictment was sustained, and the court being of the opinion that the objection upon which the demurrer was founded could be obviated, directed the submission of the matter to another grand jury. This order was made upon the twenty-sixth day of June, 1905, so that more than thirty days elapsed between that date and the day upon which the second indictment was returned. Prior to the finding of the latter indictment the defendant moved the court for an order discharging him from the custody of the sheriff of Sacramento County and directing that he be returned to the custody of the warden of the state prison at Folsom, upon the ground that no indictment had been returned against him within thirty days. He renewed this same application in different form upon the trial, basing it upon section 1382 of the Penal Code, to the effect that the court, unless good cause to the contrary is shown, must order the prosecution to be dismissed when a person has been held to answer for a public offense if an indictment is not found or information filed against him within thirty days thereafter. The court denied the motion, and properly. In the first place, good cause was shown, it being established that an important witness, Jolly, was unable to attend the session of the grand jury and give his evidence earlier than he did. But the section itself has no application to a case such as this, where a demurrer to an indictment has been sustained and the prisoner remanded to custody to await the action of a subsequent grand jury. It was decided, as to a second information, in People v. *Page 245 Lee Look, 143 Cal. 221, [76 P. 1028], that the thirty-day provision had no application, and the same rule pertains to a second indictment. (See, also, People v. Lundin, 120 Cal. 311, [52 P. 807].) It appears that the court, upon a writ of habeascorpus, discharged the defendant from the custody of the sheriff of Sacramento County and remanded him to the custody of the warden at Folsom before the second indictment had been returned. It is contended that this order amounts to a formal dismissal of the charge, and is a bar to the second indictment. But this is in direct conflict with the provision of section 1387 of the Penal Code, and, moreover, a direction of the court that the case be submitted to another grand jury prevents an order of dismissal from operating as a final judgment and bar to further prosecution. (Pen. Code, sec. 1008; People v. Clarke, 42 Cal. 623; People v. Breen, 130 Cal. 75, [62 P. 408]; People v.Kerrick, 144 Cal. 46, [77 P. 711]; People v. Smith, 143 Cal. 597, [77 P. 449].)
The motion to dismiss was, therefore, properly denied. Appellant contends that a grand juror, Thomas Waite, was incompetent to act as a grand juror for the reason that he failed to possess the qualifications prescribed by subdivision 3 of section 199 of the Code of Civil Procedure, in that he had been discharged as a trial juror within the year. This was not one of the grounds of his motion to set aside the indictment or to dismiss, and, in strictness, is not entitled to consideration upon this appeal (People v. Renfrow, 41 Cal. 39; Shields v.State, 149 Ind. 400, [49 N.E. 351]; Southern Pacific Co. v. Rauh, 49 Fed. 701, [1 C.C.A. 416]), but owing to the extreme gravity of the case, appellant's proposition may be considered upon its merits. Subdivision 3 of section 199 of the Code of Civil Procedure, touching the incompetency of jurors, declares that, "A person is not competent to act as a juror . . . 3. Who has been discharged as a juror by any court of record in this state within a year, as provided in section 203 of this code, or who has been drawn as a grand juror in any such court and served as such within a year, and been discharged." This provision seems to have reference to the incompetency of one to act as a trial juror, and renders incompetent to serve on a trial jury either a trial juror who has served and been discharged within a year, or one who has served as a grand juror; but if it does render incompetent to sit upon a grand jury a trial juror *Page 246 who has been discharged within the year, this fact does not affect the validity of the indictment. (Ex parte Ruef, 150 Cal. 665, [89 P. 605].) Appellant's further objection to certain of the grand jurors that they were aliens was overcome in each instance by evidence of their naturalization and citizenship. This proof was established by the admission in evidence of the judgments of naturalization and by a showing of their exercise of the rights and duties of citizenship. (People v. Freeland, 6 Cal. 98; People v. Roberts, 6 Cal. 215; Boyd v. State of Nebraska,143 U.S. 178, [12 Sup. Ct. 375]; Nalle v. Fenwich, 4 Rand. (Va.) 585;Providence Gold Mining Co. v. Burke, 6 Ariz. 323, [57 P. 641].)
The last point urged by appellant is that section 246 of the Penal Code is unconstitutional. The arguments advanced in support of this proposition received due consideration by this court inPeople v. Finley, 153 Cal. 59, [94 P. 248], and it was there decided that the law is constitutional. We perceive no reason to change our views upon this question.
The judgment and order appealed from are therefore affirmed.
Shaw, J., Lorigan, J., Angellotti, J., and Sloss, J., concurred.