The morning call., 1891-12-24

passing that the late Hall McAllister was th ils
Counsel of Souihweil and defended him III ti,s
case referred to. 8 observed ALREADY, ooulh
well suffered a judgment OF conviction; the gen
eral law OF the day upon all the points lnv9iseo
Is the general law OF TINS gay NJ occnrreS ~
him that he Irregularities which he there renee
upon, which proved insufficient 10 obtain the re
versa he sought, might be efiectuaily availed OF
by writ of prohibition. which writ upon tne
views now announced would have opened the
door for the escape of his client.
When II Is remembered who Mr.. McAllis TEL
was, and the learning. ability. assiduity ana III
genuIy which he never failed TO display In tbt
defense of client, the fact that he In ths South
well case overlooked point Of so much imDor
lance must excite our special wonder. Nlgn
It not suggest TO those who think they have dis
covered ii that 1t is too valuable to accused per
sons, too efficacious in the sudden delivery o.
the guilty, to have been so long overlooked p1
the able body of attorneys and advocates wht
have babiiualy defended accused persons u
our criminal courts, and WHO have permitted
hundreds Of their clients to suffer lie ignomini
Gus punishment OF the felOn without Knowing
without apparently even dreamng-that such {
remedy as this could be had, and for the mere
asking?
And this suggests the thought. in how many
cases OF the hundreds OF persons now In conlne
ment in .he State Prisons OF this State might II
not now be shown that irregularities as great a.
those said to have occurred In Burners cast
they are held In prison; ana what would De TN
effect OF writ OF certiorari which would Drins
the fecOTu D6lUit ITO Couit, lOi ~ uhisht w
claimed, with no ltlls plausibillty at least. thai
the supposed absolute lack OF jurisdiction when
defeats proceedings pending would also annu
proceedings finished. But. as have remarked
The doctrine OF the Southwe,l case has always,
since Its announcement, been followed, ana thai
the cases are too numerous to justify their eta
ton here.
There Is one, however. occurring rs late as TIL
year 1888, in which the Southwell case was ex
pressly mentioned, and when perhaps snOu ~.
be adverted 10 here. / refer 10 the case OF I'M
People ys. Geldenson, reported in the seventy
eighth volume OF our reports, and where I'M
opinion VI the Court was delivered by Juslc'
Paterson and concurred in by Justice McFar
land
THE SUPREME COURT REVERSED ITSELF.
Goldenson, having received Judgment o
death. appealed to the Supreme Conrt, Wheft
tile Judgment against him was affirmed
Among other reasons assigned by him To re
verse the judgment was THAT the indlcinen
was invalid and void because found by body
OF men calling themselves a Grand jury wh(
had not been selected according 10 the require
ments OF the law, and for that reason the Cour
had no jurisdiction OF the alleged crime or OF Id,
defendant"
The Important part of the response by the Su
creme Court to this position OF Goldsnson wa
Irregularities In the formation OF Grand jury
cannot be considered on motion 10 set aside ar
indictment; such motion can be addressed onlI
10 irregularities In the proceedings OF Grand
Jury. people VS.. Southwell, 46 Cal 142)." /
Is proper to add 10 this connection that In NJ
respect has the law OF this case been changed
since the year 1888.
conclude this branch OF the subject by OBJ
serving that under tie rule well settled In THU
State heretofore, and undlsturDed Tor nearly
twenty years, the matters alleged by Bruner In
his petition 10 the Supreme Court for the writ O.
prohibition, even IL true In point OF fact were
not iuTisdictonal in their consequences; nor ever
which he might have suffered IN that case. ane
that this being so IL must follow by mere lega
mat they could Se5 no c5 10 al
proceed, II at ALL not only upon error committed
by the court below. but on the gravest and mos
serious of all errors pOssible-the error OF 1uris
dictlOn exec ded.
A WRIT WITHOUT PRECEDENT.
Fourth-But even II all that has yet been SAID
here be not well founded, and be utterly dis
oarded still the writ OF prohibition, as issued IN
this case, is without precedent in this State In
another respect; for concedng that there. was
the most obvious excess OF Jurisdiction made
manifest In Burners case lie had a remedy BY
appeal taken after conviction suffered. Such an
appeal would have been plain, speedy ana ade-
quate remedy; and because 1t was such a
remedy the writ of prohibition TO arrest the pro-
ceedings here was forbidden by law; IN us BY
section 11o3 OF the Code of Civil Procedure. 81
the writ OF probationary be Issued
In all cases where there Is not plain. speedy
and adequate remedy in the ordinary course of
law" Such Is the statute.
But We have higher authority for this than the
stRtute-the authority of the Supreme Court it
self / refer to The case OF Strouse. petitioner
vs.. the Police Court CS5 Cal. 49). TIE opinion In
this case WAS delivered by Justice Paterson
ana cuncurreQ IN Oy justice mcfaflabu. LIE
opinion IN the Bruner case was delivered By
Justice Mcfarland and concurred IN by Justice
Paterson, and II Is Interesting IN this cOnnec
ton TO compare them-to consider these opinion:
together in arriving RI what Is the true inIerpre
talon of Section 1103 which. as we have seen
plainly declares that writ OF prohibition shall
not issue ven In the case OF ascertained exces.
of jurisdiction below, II IN such case there is
plain. speedy and adequate remedy in thu
ordinary course of law.
The opinion In the Stfouse case is as follows
and beside II Is the opinion in the Bruner case by
Justice Mcfarland. Justice Paterson concur
ring:
MONEY PAID AND TAKE YOUR CHOICE.
OPINION IN sTRoUsEl OPINION IN THE BRU
CASE. SER CASE.
"The petitioner was Would the petitIone
arrested under war-iha q plain, SPEEDY
rant issued on said and adequate remedy
complaint, and In due in the ordinary cours,
lime entered plea OF of law? II there b.
hot guilty, and under such remedy 1t must bt
the plea challenged The by appeal. But II woulC
jurisdiction of he difficult prop
that notwithstanding that a defendant in ;
his plea OF no iurisdc- criminal case woult
ton the Police Court have a plain, speedy
threatens 10 proceed and adequate remedy
with the triil OF the because after convic
charge against pet l. Itou and judgment hi
toner, and he prays forIcould have the illega
a writ OF prohibition proceedings reversed
TO restrain the Police on appeal Let the
Court from proceeding, writ issue restraining
with the trial of the he respondent a.
action. Section 11o3 prayed In the petit
OF the Code of Civil ton."
Procedure provides that,
a witt of prohibition
may be issued In all
cases where there Is
not a plain, speedy and
adequate remedy 10 the
Ordinary course Of law.
This is not such case.
" The petitioner be con-
yicied IN tile Police
Court lie will have
plain, speedy and ade-
Quate remedy at law by
appeal 10 the SUPERIOR
C Cot, Application for
.. In short, the writ of prohibition was denied te
Strouse "cauSe an appeal was a remedy good
enough Tor him. but under precisely the same
legal conditions the writ OF prohibition was
granted TO Bruher because an appeal was not a
remedy Sutlciently plain, speedy and adequate
for him. Both of thes decisions now stand as
law defining the conditions under which a writ
Oh pIohioitioh may issue upon the one hand and
the conditions under which it must be refused OIL
the other.
This situation Is scarcely reconcllable with tile
weil-kDown maxim of that common law which
has been Invoked In support of the overthrow 81
the Grand Jury here. The maxim Is as follows
Lex uno ore omnes alloquitur"-the law speaks
TO all with the same voice.
SUPREME INCONSISTENCY.
The decision pronounced in each one of thest
cases points in direction precisely opposite Ia
that pointed 10 by the decision In the other case
II iucfe oc auy uistlnctiOn between them 1t l.
supposed TO be only such n distinction as Is as
serted to by Mr.. Justice Mcfarland and The
majority OF The Supreme Court to exist between
the decision In Burners case and that rende red
In ymonds case-"one too clear 10 need dis
CUSTOM.
And this last observation suggests the though,
mat the decision given in the case of Bruner /.
precisely In conflict with the decision pronounced
IN the case of Raymond, referred to by lht
learned Associate Justice 1t was declared IN
Inc Raymond case that the Grand Jury here
1mpaneied was a de facto Grand Jury. Six OF
learned Justices concurred In the decision. Tie
record before the Supreme Court. In bank, In til,
Raymond case was record showing The step.
taken In the organization OF this Grand Jury. II
was, IN that respect the same as the record ex
nlDlted TO the same court iu The Bruner case
Now In The Raymond case and with this record
before them, six OF The members OF the court-nC
member OF the court dssentlng-hcld the follow.
ing language:
:" IL Is sufficient for us to see that such bod,
mas certainly de facio existence, and this beini
SO, the witness was clearly guilty of contempt il
refusing TO testify.n
In other words, the Court then Informed MIR
Raymond that u was his duty to testify before
you as Grand Jury; they now Inform us, how
ever, In The Bruner case that you, as Crane
Jury. had no authority to listen to Mr. Hay
m0nd when lie should testify; and yet Mr. JUS