Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-01-09
TIE CASE OF HURTADo.

Ex.Attorrey. General Hart departs in a
few days for Washington, where he goes to
argue the case of Joseph Hurtado, plaintiff
in error, VS.. the People of California. 1t will
be remembered that in February, 1887, Hur-
tado shot and killed, on Front street in this
city, j ose Antonio Estuardo. In accordance
with the provision of the Constitution and
certain sections of the Penal Code, the Dis
trict Attorney of Sacramento county made
and filed an information against Hurtado,
charging him with the crime of murder.
Upon this information, without any previous
investigation of the case by Grand Jury,
the plaintiff was arraigned and pleaded not
guilty. He was tried and found guilty OF
murder in the first degree, and sentenced to
be hanged on the Goth day OF July, 1882.
From this Judgment an appeal was taken to
the Supreme Court, but the judgment of the
lower Court was sustained. The Judge of
the Superior Court thereupon fixed the Both
day of August, 1888, as the day OF execution.
Counsel for defense appealed again to the
Supreme Court, claiming that the action as
it had been conducted was in conflict with
the fifth and fourteenth amendments of
the Constitution. in this, that defendant had
never been legally or otherwise indicted or
presented by any Grand Jury. On the 18Th
day of September the Supreme Court of the
State affirmed the Judgment OF the lower
Court aud the order fixing the day of execu-
ton. Thereupon the attorney for the
Court of the United States, and the
latter Court issued a restraining order
to The Sheriff. On Tuesday, the 22d day of
January, the case will be heard at the Ma
tional Capital The points that Hurtsdo's
counsel expect to make, briefly stated, are
these:
The Constitution of the United States
provides Nor shall any State deprive
any person of life, liberty, or property with
out due process of law" Indictment by
Grand Jury was an essential part of due pro-
cess Of Tar, as applied to felony cases at the
time that phrase was adopted into the four
teenth amendment of the Constitution. In
support of this proposition, it is commended
l. That the institution of Grand Jury as
protection to the life or liberty Of the sub
jsct cannot be said 20 ID o mere matter of
formal procedure, and therefore within the
exclusive control Of the States but is a sub.
stantial protection against placing in jeopardy
the life or liberty Of on individual to crafty
the maleyolence Of those in power or their
favJrites.
2. That the right to have his case heard and
determined by Grand Jury in all cases of
felony was one of the ancient common law
rights cf every subject of Great Britain, and
the establishment of that institution as a
permanent barrier against the unjustifabIe
oppression OF the citizen by the Government
was one OF the principal objects attained by
the adoption of Magma Charta in favor Of the
common people of that country.
3. That permsnency and stability was given
to that ms tuition by the words "lalc Of the
land," used in the Great Charter, and that
those words are synonymous with the phrase
due process Of law, as used in the four-
tenth amendment.
4. That the princir ,les of the common law
embracing its established modes of procedure
and its securities to life, liberty and property
were adopted into and became the law of the
American colonies at the time of their organ.
iZation, and that before the Constitutions of
the General Government and Of the several
States were adopted the determination of the
Grand Jury before person could be leopard
lied, harassed and compelled to expend his
fortune in his defense by being put upon his
public trial was essential as q part of the law
of the land or due process of law secured to
every En- lish subject by the Great Charter.
,. That the Grand Jury system Of England
became a part of the common law Of Amer.
lea, and was an essential part of the due
process of law" to which every person was
entitled before there were any constitutional
provisions uDon the subject.
.. That the words due process Of Law, as
used in the fourteenth amendment, embrace
the right to be indicted by Grand Jury in
felony csses before man can be placed upon
his public trial, and that amendment deprives
the States of the power which they possessed
before its adoption, to provide any system by
which an individual may be prosecuted for
felony until he has been examined and in
dicted b. twelve Of his peers.