The record-union., 1891-12-14
AN ILLEGAL BODY.
CONTINUED FROM FIRST PAGE.

the Indictment thus found by an Illegally con-
stituted body as worthless, and all proceed
ings based upon il void" fSee also People VS..
Cofman, "a Cal. 234-) And such IS the Tenor
OF the general authorities. In People VS.. NC
dictment found by a jury not legally consul
tuted cannot be valid" In McEvoy VS.. state
G. Nebraska 163) the court say: ''The Grand
Jury must be selected In the manner pre-
scribed by law. There is no security TO the
citizen but in rigid adherence to the legfs-
]ative viii, rs expressed in the talutes Ior a
general guidance" In Stokes VS.. The State
(24 Miss 623) 1t was held that 1--WE quote from
The syllabus, which correctly states the decis-
JONI "a Grand Jury consists OF the requisite
number of competent individuals selecteu,
summoned. impaneed legally and sworn ac-
cording to the form of law, and if the forms be
not followed the Grand Jury is incompetent
strict observance of the statute in regard to
the formation of jury cannot be Gispens-d
With" In Ramey VS.. The state (19 Tex u:
of Appeals 4S1B the court says that a Vaiid
indictment is an Indispensable pre-req ulslte
10 a legal prosecution for felony" In flnley
vs. The State (61 Ala. 201l the court. after re-
ferring to an unauthorized order MADE by the
lower court in procuring Grand Jury, SAYS:
s9The exercise of such a power by the court
would be violation of the spirit OF all our
legislation and would convert the Grand jury
from a distinct, independent body, drawn
and summoned. by officers specially charged
with that duty, into a mere dependency OF
the court. chosen by its absolute viii. The
practical results of such a power are too ap-
parent to require discussion or statement.
There is no reason 1Or I'M parting 10 the court
in this instance more than mere error but
the power exercised in the hands OF a capri
cous or an unscrupulous Judge would destroy
Ghe purity and independence OF the Grand
Jury and pervert it from all the purposes OF
It's intention"
There are numberless other authorities TO
the same point but il is useless 10 indulge in
further citation. And these authorities are
determinative of the other form III which one
OF the respondents counsel states his position,
To wit: That the court having obtained Jurls-
diction OF the matter of forming Grand jury
by first making q valid order that certain
jurors be drawn from the box, retained or thus
acquired power to make the subsequent in
valid order that other jurors be selected by
Scott. But that was the exact state of facts in
many OF the cases above cited. In Finley VS..
The state, for instance, the court had first
made legal order that certain Grand JurCrS
bc properly drawn, and had afterward made
an illegal order for the procurement OF other
jurors. Tine tact is that the jurisdiction OF the
respondent to legally impanel Grand jury
cid not come from any order which IL mace
in the premises. That jurisdiction came from
the law, and was vested In the court before
any order was made by 1t. But that power
was limited. There was room for the play
and exercise of discretion within the in
closure: but they could not get beyond that
without overlapping or brt a&lng down the
larrerS. The appointment OF scott was an
acl entirely independent OF, and distinct from,
the order for the drawing OF jurors from the
box; and il there wBS any power TO make It,
such power must be found in the law and not
in any previous action of Ele court. AS said
In high on EX. l.. Rem. (Sec. 704, I'd Ed a
court will not be permitted to make a Juris-
dlction for itself, by coupling matters beyond
It's control with those upon which IL may
1ighI;uliy adjuuicate."
Gu c1i c.uSion is that the court bel W had
no .utlority ia law to appoint sid scott u
seect Gr1nd j rpfS, &c e there was II }
Sc 20 which the ioHer of appt hitting an
eilsor applied.
is p ,on.b II, n theI 7 per re nedy?
PrUnibi' on lie i / all .,ists $ n r. th' re have
b en pr, C oliui "witi olJ II * So of
9tr 81 ..ol a NJ thtre as noJ piaa IS edy
and aQequ3 I remedy in tie trdu a course
o aW." &c. 4. T.. e :. OF IL 11O3 II
Inc views hereinbe.ole exple e SEQ are 60 !,
it is clear that the appointment of the (so
G tled) e isor j. NEUTRALITY-SUSPICIOUS. dLriS-
d ction Is usual denned a; "lhe over to
hear ana determine but, O. coarse, IL Is cliff
c alt to express, IN abstract eGs, 4 statement
OF the d1 Jinction between error N exc c.sns 3
Juris lic'iJn and juris d.ctlon itsel', tn II cln
rereadiIy applied TO all cases as tney may
aTise. The Jaw eldCa ors to fix definitely
eve yth ng that IN in its stCre be o nNed,
50 as to leave as little a possible TO the luC
ment or ca0T.ce of those VINO d d .ninit I a.,
but S many future events cannOa, in Ie a
ture OF things, BE- TO 'eseen and provided TO-,
i. follows ne essariIy that much must b eff
10 the discretion of courls and oth6 tr .bunals.
And the main test of Jurisdlc..o o in any
particular natIer is whether or not d r.
lion is li.en the court as to sGch mater.
In the matter before US, for instance, II the
law intended to give the power to appoint an
elisor in the event OF disqualification of the
Sheriff, IL is apparent that the law could not
determine beforehand the Disqualification
of any particular person who might happen
TO be Sheriff at any future time. 1t could not
say that any such Sheriff would be actuated
by ''bias or prejudice" Consequently the de-
termination OF the issue, when properly made,
of such disqualification, is necessarily left to
the discretion OF the court; and it has juris-
diction to hear and determine that issue. But
when there is no such disqualification, then
there is no discretion given to determine
whether an eiiSor should or should not be
appointed. Consequently, when there is such
an issue made and the court finds against the
disqualification, or when, as in the case at
bar, 1t is admitted there is no such dsqualiIi-
cation, then no jurisdiction exists to make
the appointment And the jury not being a
legal body, and the SO-called indictment beng
void, then as before quoted from Levy vs..
Wilson, 1.-THE court has no jurisdiction to try
the petitioner upon it.". The conclusion fol-
lows that the proposed action OF the court
would be without and in excess of its jur4sd sdic-
ton.
The only other question is: Would petit
tioner have PLAIN, speedy and adequate
remedy in the ordinary course of law!
If there be such remedy il must be by ap-
zeal. But il would be dihlcult pros osition
TO maintain that a defendant in CRIMINAL
case, forced through all the stages OF a trial
for leony without any Indictment against
him, or, which is the same thing in effect,
upon void Indictment, would have a plain,
speedy and adequate remedy, because al, C {
conviction and Judgment, and perhaps after
suffering the ignominy of Imprisonment in
inc state Prison, he could have the Illegal
proceeding reve- Sed on APPEAL. But 1T is not
necessary TO discuss that question, because it
1he point here made by petitioner cannot be
reached on appeal. 1t was SO held by our
predecessors in People VS.. Southwell, dc CAL,
al. In that case the lower court has made
an order reciting that where objections TO the
Sheriff, and that the court intended TO submit
certain charges against him to the Grand
1er to summon the Grand Jurors. The de-
fendant attacked in the court below the
legality of the Grand Jury upon the ground of
such appointment of the Coroner by moving
to set aside the indictment. On appeal this
court first held that the appointment of the
Coroner was illegal, that the question could
be reviewed on appeal; and that the judgment
should be reversed; saying among other
4ningS that "a due regard to the rights
OF all persons accused, or TO be accused
10y the Grand Jury, required that that body
should be summoned by the officer intrusted
b. law with the performance of that duty"
But rehearing was granted and after fur
ther consideration the court (Wallace, c. ].
dissenting and adhering to the former opin-
ion) held that "in its legal effect the motion
was challenge TO the panel, - and that as the
objection TO the summoning OF jury by the
Coroner was not a statutory ground of chal-
Senge TO our panel the defendant had no rem
edy on appeal. In People vs. Welch, 49 Cal.
I74, the court below had allowed the District
Attorney 10 examine the Sheriff as to his
qualifications To summon & jury, and upon
his testimony that ne was biased against the
defendant, had appointed the Coroner to
summon the jury. The defendant objected TO
the venire for that reason; but this court, on
appeal, while holding that the action of the
court below was wrong, held also that the
question could not be reached, saying that
Ihe People VS.. Southwell sis authority for the
proposition that the mistake of the Judge in
this case was not ground for challenge 10 the
panel of trial jurors, or of objection to the
venire." 1T will be noticed that In both OF
the above cases there was an attempt, in some
form, to attack the qualifications OF the
Sheriff. The same rule was announced in
People VS.. Colby (54 Cal. 81 and People VS..
Hunter Id. 65); and in each of said cases The
People VS.. Southwell is mentioned and ex-
pTeSsly approved And unless all OF these
caSes-and some later ones-are TO be over
rnled there is no MaY in which the question