The record-union., 1891-11-17

should rest in him, because it was neces-
sary that some one should hold this bal
anclng power. OF course it was possible
that this power could be abused, but it
had not been looked upon by the law
makers as probable. Mr.. Rhodes then
read some sections of the Codes to offset
those quoted by Mr. Campbell, and
argued that it was not necessary that the
Sheriff and Coroner should be shown to
be incompetent to summon the jurors be-
fore an elisor could be called in. The
law was plain that the court could call
upon the Sheriff or appoint an elisor just,
as was deemed fit.
QUESTION FROM THE BENCH.
81 am under the impression" inter-
rupted Justice Mcfarland, that those
sections you have been reading have ref
erence TO the selection of trial jurors.
Do you think that should apply to the
method of selecting Grand Jurors?''
MIR. Rhodes said he would reach that
point in the coarse of his argument. and
proceeded to discuss at length the discre-
tionary powers of a Presiding Judge. He
had not concluded when the noon recess
was taken.
When court reconvened in the after
noon Attorney Rhodes resumed his ar
guInent. He cited q section Of the code,
drafted by Stephen }. Field, John Fl.
Dwinelle and Jackson Temple in 1874, in
which it was provided that a court
might, in its discretion and under certain
circumstances, authorize even the Baliff
to summon jury. The Judge insisted
that the San Francisco court did acquire
jurisdiction in forming the Grand Jury.
W hen court has jurisdiction Of the sub
ject matter, it has jurisdiction TO even
commit error. There can be no excess of
jurisdiction that cannot be remedied on
appeal. The acts Of a de fOcto Judge or
Sheriff or Grand Jury are Just as legal as
those Of a Judge or Sheriff or Grand
jury de jUre.
HOW TO DO TT.
| 1t appeared. he argued, that number
! of good and lawful citizens had been inn
| panele1 Us Grand Jury, and bad been
recognized as such by Judge Wallace. 1t
was, therefore, lawful body. In SUD
port of his position Attorney Rhodes
read an Eastern decision. In this case a
special law had been passed requiring
that the Board OF Supervisors should
select the list from which the Grand Jury
was drawn; subsequently, special law
WIS passed requiring that the Recorder
should do this work. y man was in
dicted by a Grand Jury selected by the
Recorder, and upon conviction appealed.
The special Act was declared unconstitu
tional, yet the Grand Jury was cOnsid-
cred lawful body and its acts were APP
proved.
Justice Mcfarland interrupted the
| speaker again, to ascertain exactly what
! Mr.. RhOdcS' position was. he wanted
to know ii the attorney contended that
the San Francisco Grand Jury cannot be
attacked, no matter how many deViatiOnS
were made from the usual cuStOm-that
is, il the court could go out into the
street and summon whoever he pleased
Mr.. Rhodes admitted that this was his
contention. Ills principal point, how
ever, was that the action of such a Grand
Jury could not be attacked by means of
writ Of prohibition; the matter could
only be brought up on appeal after con-
VictiOn had been had OH one OF the in
dictments.
THE CASE SUBMITTED.
Attorney Campbell replied briefly, de-
voting himself principally to reiterating
! his strongest point-namely, that there
| were no grounds for appointing an elisor
! He added that the appointment Of elisols
was becoming epidemic at the metropolis.
Judge Wallace was not content with ap-
pointing.an elisor to select Grand Jurors,
! but he had again leaped over the Sheriff
and Coroner and appointed an elisor to
select trial jurors to pass upon the indict
ments found by his Grand jury.
Before the case was submitted Lawyer
! Garrett McEnerny of san Francisco ad-
! dressed the court. He appeared for SEN
| ator W. II. Williams, another one OF the
| Grand Jury's victims, and wanted TO add
an objection to those put in by BruncI's
attorney. He spoke very briefly and to
! the point. His objection was that the
manner of selecting the jury was uncon-
stitutional, inasmuch as it was established
! by special Act OF the Legislature, and
therefore conficted with the section Of
| the Constitution which prohibits special
legislation.
When Mr.. McEnerny concluded, the
| case was submitted and taken under ad-
visement by the court.