The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1891-12-13

no occasion for the court proceeding further and
examining into the grounds upon which petl-
toner, In that particular instance. rested his
charges of the invalidity Of the jury, the case
would have stopped al the threshold. Aud the
question was fully presented and deliberately ar
gued by opposing counsel.
Loud rback, for petitioner, argued strenuOusly
that prohibition was the proper remedy, and
cited numerous authorities 10 sustain his no.
stlon; while the first point made by counsel for
respondent 81. n. E.Wils0n) was that prohibition
would not lie-authority also being cited to that
point. And so If the court had agreed with the
position OF respondent II would have dismissed
The proceedings unOn that ground. But no such
course was pursued. 1t entertained the writ of
prohibition, and discussed the cases where it
will and will not lie, aud clearly held that 1t
would lie when there was an indictment by a
body not ayalid and constitutional Grand Jury.
Such Is the necessary result OF the action OF
the court. and such is the conclusion that must
follow the language which 1t used. In that case
the petitioner. among other things, had alleged
numerous Irregularities as grounds OF the ille-
gaiIy OF the Grand July, and The court, In
| speaking OF those, uses this language: Most of
the grounds stated for the purpose are irregu-
larites aud errors accrulng before and after the
| finding and return Of the Indictment. But as
| these are matters which are reversible and re-
mandabie on appeal In The action, they are not
grounds for a writ of prohibition. Prohibition
| lies TO arrest the proceedings Of judicial
| tribunal when they arc without or 10 excess of
its jurisdiction; and the writ is issuable only In
cases where there Is not plain, speedy and
adequate remedy In the ordinary course of law"
But, having disposed OF these minor matte rs
| the court proceeds: lone OF the grounds lated
In The petition is, that The Indictment found
| by a body of men styl d Grand jury that was
| not in law and in fact valid and constitutional
| Grand Jury. III that be So the accusatory paper
| returned by them 10 tine court below as an in
dtctment Is worthless and void people vs.. Thurs
ton, Cal. go, and the court has no Jurisdiction
! 10 Try the petitioner upon it," And so the ex-
| press language OF the court Is a clear state.
ment that If In that case the indictment had been
| found by body OF men who were not a legal
| Grand Jury, the peremptOry writ of prohibition
| would have been granted. From every stand
| point, therefore, the case must be taken as full
authority TO the point that prohibition lies In the
| case at bar. But when the court proceeded and
| looked into the merits OF that case IL found
| against the petitioner.
PROHIBITION Is THE REMEDY.
The fact relied on was that the court below.
| after having ordered some OF the grand jurors
| drawn flom the jury-box, had then ordered the
| Sheriff 10 select the rest from the body of the
| county The point insisted on by petiti oner was
that, under the Constitution. grand jurors must
| be drawn" and that drawn meant tax en- from
| the jury-bOx by LOT, and that the statutory pro-
| vision allowing The court TO direct the Sheriff %
select jurors was unconstitutional. On that point
| the decision OF The court was against The peri-
uoner: while IL SAYS thai, we are OF opinion
that the court below, IN exercising its discretion
| ought TO have ordered tie panel TO be filled by
requiring the clerk in open court and In The pres
| ence OF the Judge 10 draw the requisite
| number OF names from the Grand Jury box iu-
| stead OF requiring the Sheriff to summon Jurors
| from the body of The city ana county,; yet it
| holds that The course adopted by the court was
one authorized by the code" But if the cOur;
| had held with the petitioner in his contention
duuui me power IL Is Clear tidL the WIFE
| would have issued. As TO the case OF ex parte
Raymond, 1t is sufficient to say that the disliBc-
| lion between mere witness and a party iu-
dIcled Tor "A felony is TOO clear TO need discussion.
We are Of opinion, III rcfore that there Is no
! jurisdiction IN the respondent to proceed with
! The titdl OF petitioner; that the latter has no
| "plain, speedy aud adequate remedy In the or
! binary course of law" and that prohibition Is
| The proper remedy.
| Petitioner makes the point that at the time of
| the order complained OF there rule OF the
| Superior Court of san Francisco. made by the
! twelve Judges thereof, and never repealed or
aDTOgattd, as follows: Rule t. 1t shall be the
/ duty OF the Presiding Judge 10 preside over the
drawing and Impeachment of all Grand Juries
| requned by law of the public interests 10 be
drawn. Grand Jurors must in all cases be drawn
| from the list OF grand jurors selected by tie
| Judges OF this court. unless tie Grand jury box
/ containing the names of jurors SO selected shall
b. exhausted without securing Grand jury"
! Also that The Constitution requires Grand
| jury 10 be drawn, and THAT drawn" means
| taken by lot from iury-boX Also that one OF
! The alleged indictments against petitioner
| shows upon its lace That II The crime charged
| was committed al all II was committed In the
| county OF Sacramento, aud without The jurisdIc-
| ton OF respondents. Also, that the trial jurors
| been procured by another similar order appoint
| Ing another ellsOr. Also, that petitioner was
| competed TO appear before said Grand jury and
| testify as 10 The very charges upon which he was
| indicted. But cur views heretofore expressed
! are deteimnattve OF tile case, aud as some OF
| said questions are renewable on appeal, we
| deem 1t unnecessary here TO discuss them.
| Let the writ Issue, restraining The Respondents
| as prayed for IN the petition.