The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1891-11-17

MIN, on lH6 BTOunu ludl INC GIduu Jury
has been irregularly created. District At
torney Barnes and Attorney General Hart
appeared on behalf Of the people, and ex-
Justice A L. Rhodes for Judge Wallace.
J. c. Campbell appeared for the indicted As
semblyman. All the Justices were present.
and the room was crowded with State Off
eials and lawyers. Campbell began his ar
Rument by reviewing the facts attending the
Impeachment of the Grand Jury, and he
cOntended that the presence of l19 names in
the Grand Jury box and the presence of
Rule Of the Superior Court in full force
rendered the jury, as materialized by Judge
Wallace, Illegal and void.
AUTHORITIES CITED.
He read from the case Of Levy vs.. VIII
son, decided by the Supreme Court. to sns-
tain the view that if the Grand Jury had
been Illegally and uucOustltutionslly
created the indictment presented by il was
q mere aceusatory paper, having no force
or effect. Section 22G Of the Civil Code
must be read in connection with Section
1872 of the Political Code; that is to say,
an elisor cannot be called in to take the
place of the jury box until certain condi-
tions have been complied with. He cited
that section OF the Constitution which de-
clares that Grand Jury shall be drawn
and summoned st least once year. He
placed great stress on the word drawn"
be claimed that it had technical meaning.
Where the Constitution prescrloes a mode
for doug a thing it must be strictly fol-
lowed, hence jury must be drawn" not
summoned by an elisor, but drawn as that
word is used by the common law.
CONSTITUTIONAL RIGHTS.
He cited the case of Mcnamara in Fourth
Nevada, where it /. laid down as pTinci-
pie that every person accused of crime has
q constitutional right to have an indictment
found by legal Grand Jury; and where a
Judge departs from the strict letter Of the
law he must have indisputabe right to do
So He challenged the attorneys on the
other side to produce q case from any court
in the land where the Sheriff or the legally
constituted officer 10 draw Grand Jury is
set aside. that the jury has not been de-
clared Illegal. He declared that Section
1880 of the Political Code, 226 and 227 Of
the Code of Civil Procedure and 1872 Of the
Political Code must be read together. If so,
there could be no question that before an
eliSor can be called in the Sheriff aud Cor
oner must be disqualified. II the Court
were asked the definition of the word
"elisOr." it would answer, "a person 10
serve process IN the event of the disquali-
cation Of the Sheriff" There was no Ques-
tiOn that the word is used in its legal sense.
QUESTION OF JURISDICTION.
Justice Mcfarland asked: docs it ap-
pear from tie record that there was no rea-
son for appointing an elisor~
Yes. Sir" said Campbell, the record
airfIfs that the f'Qnrf ann0iDfp1
TO summon this Grand Jury without offer
ing any reason for setting aside the Sheriff
and Coroner" Campbell next cited the
definition OF the word "elisUr' in over
dozen law dictionaries and text books. He
declared that this technical meaning must
De applied TO the word as used in the code
The action OF Judge Wallace in departing
frcm the letter of the law TO secure the
summoning Of grand Jurors IF his own Sc
lection was, Campbell said, worthy of the
Gar of Russia, and would make an ordi-
nary poteltate blush. The other points
made by him were that the indictments
against Bruner, especially the one for per-
jury, ere founded on his testimony; that
the 3rand Jury was illegally impaneled
under Rule of the Superior Court of San
francisco, and that the alleged crime OF
which BIuneT is accused was committed in
Sacramento and without the jurisdiction Of
Judge Wallace.
JUDGE RHODES ARGUMENT.
Judge Rhodes followed. He claimed
that the proc dings upon the impeachment
OF the Grand Jury were regular, and that
Judge Wallace had jurisdiction. This
answered all the objections urged by the
petitioner. Having acquired jurisdiction,
It follows that any Irregularities do not af-
feet the validity of the Grand Jury. Rule
OF The Superior Court has no force in law.
II the court makes rule In violation of law,
so much the worse for il. As for the in
n en4n Ff
Is no evidence that such is the fact
Whatever evidence he gave stands on the
same footing as other evidence. He cited a
Dumber of decisions to substantate the rule
on questions Of jurisdiction. The record is
the exclusive evidence. In this case the
record shows that the requisite number of
names were drawn from the jury-box, thus
giving the court jurisdiction.
NO ONES LIBERTY THREATENED.
1t Is no answer to the fact that the law
gives the Court discretion to appoint an
elisor 10 say that it may be abused All
discretion may be abused. No ones liberty
IS threatened. Even though man may be
indicted he cannot be indicted without evil
dence, nor can he be convicted without a
fair and impartial trial. The presumption
Is that the discretion of the Court Will not
be abused. The Political Code has no ap-
plicatlon to this case, Section 4lS2 relates
only to actions and proceedings. The i'm
or proceeding. All the definitions from law
dictionaries read by Campbell apply to the
word ells0T," when used in its relation TO
an action or proceeding. Neither the Sheriff
nor the Coroner could be parties to any ac-
tion by Grand Jury.
at noon the court took a recess until
o'clock.
MERELY ERRORS.
After recess Judge Rhodes resumed his
argument. lie read II report made by JUS
tice Field, John W. Dwinelle and jackson
Temple, who were appointed to revise the
codes In 1879 IN which they recommended a
section authorizing the court to order It's
baliit to summon jurors where its pro-
ceedings were impeded for any reason. He
submitted thai the judgment Of these men
was equal to any half dozen decisions. He
argued at length upon the question Of juris-
dlctioh. There was no doubt that II court
acquired jurisdiction Of a subject it has
Jurisdiction to commit error. In impaneling
this Grand Jury Judge Wallace necessarily
got jurisdiction to the subject. 1t then
made no difference what errors were CON-
mitted; they could not render the proceed
ings VOID. The errors might be ground for
setting aside the indictments on appeal after
judgment, but they never could be relied on
70 quash the jury. Perhaps an appeal from
the judgment might not be speedy remedy
for such an error. OF that he did not ex-
press an opinion. The argument was d.
ItCtcu ubiy W lub pOlIlt lHdL the Superl0r
Court having drawn twenty-five names from
the Grand Jury box, it acquired jurisdiction.
and after that all Irregularities were merely
errors.
POLICY OF THE LAW.
Campbell asked how the court acquired
jurisdiction to try a defendant for crime
by the presentment of ali indictment by a
Grand jury" said Rhodes. al am not
arguing that a man can be tried on an in
dictment founded in error, but that errors
do not ihvalidate the jury itself. This doc
trine is held ia all the cases. IL is so held
In the Gnldenson case, the Levy case, in the
Petrea case, ana 1t is SO laid down by Chan
celIor Kent The principle is that it is the
policy of the law to uphold the acts Of de
iacIo officers. / do not know, for instance,
that your Honors were legally elected; do
not Enow that you ever took the oath Of
off &c: but as sutton in this court cannot
question your acts. You are the Justices
af the Supreme Court de facto. and your
decisions are valid for me and every other
citizen" Judge Rhodes referred to the
case of the Supreme Court of 1868, when the
offices were disputed. and related how he
va, ono of those who received certificate,
and his colleagues, Sanderson. Sawyer and