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

whai had occurred in The case, we say. "such
| proceedings were had" etc. THIS Is the COM
mon meaning of the word proceeding when
aUnled TO things done in court or before judicial
! officers. Indeed, counsel Tor respondents. IN his
brief. refers very naturally to the formation Of
| Grand jury as a "prneeediDg." And so we have
a statutory definition and description OF "elisor
In fall accord with the meaning that has always
! been given Ii III the general law.
Ii is cOniended that no matter how body OF
men may have been gathered together It's acts
cannot be attacked il it be recognized by the
! court as Grand jury" upon The principle
sometimes applied TO the acts of de facto public
officers. One OF the respondents counsel goes so
far AZ 10 assert that the l"ga existence or jury
| can be inquired into only by the proceeding OF
| quo warrant0; nd while other counsel do not
as ,lme that very novel position, yet their views
| logically drift Them there. But quo warranto
| does not lie against mere temporary employ
ment like that OF jury 1t lies only against the
holder of puolc office having a liked aud per.
manent tenure" QLawsOn's Rights, Remedies
and Practice, Vol. Z. Section 1910. and hottest
Ii would, indeed be a;tliEg If 4 man could be
put TO The partial ignominy and hazard of trial
at lie Will of any set OF men whom Court might
| choose TO style a Grand Jury But the correct
| this count in Levy Wilson go Cal, 105).
| where the court. through Mckee, j.. say: "One
! OF the grounds stated IN tho petition IS that Ihe
! Indictment was found by body OF men styled a
Grand jury, that was not in law and fact "a valid
| and constitutional Grand Jury II that be so.
the accusat0ry paDer returned TO the court below
| as an Indictment is worthless and void people
VS.. 1hurstOn. Cal, 69), and Tie court has no
| jurisdiction TO Try the petitioner upon IL. For
no person can be held TO answer for cline unless
! on Information. after examination aud commit
ment by a magistrate, or an Indictment by
In People vs.. Thurston 5 Cal, go, the same
| rule was stated where Murray, e. j., deiive ring
| the opinion of the court, said: 81 regard the
| indictment thus found by an illegally constituted
| body as worthless. and all proceedings based
upon it void" (See also People Goldman, "a
| Cal, 234.) And such is the Tenor of the general
! authorities. In People vs.. Mcnamara (3 New,
| T5) the Court says: AN indictment found by a
jury not legally constituted cannot be valid" In
| fpH rG Sfsfn \nlaP ha ~ nFf GaVS
| Tho Grand Jury must be selected In The nlau-
! ner prescribed by law There is no security 10
the citizen but IN rigid adherence to The leglS-
! iative Will, as EXPRESSED III the statutes for a
| general guidance"
| No AUTHORITY TO APPOINT.
In Stokes vs.. the State ga MISS, 623l, it was
| held that I'VE quote from The syllabus, which
| correctly states The decision): "A Grand Jury
| consists OF The requisite number OF competent
| Individuals selected, summoned, impaneled le-
| gaIly and sworn according TO the form OF law;
| and II The forms be not followed, the Grand jury
| Is incompetent TO perform legal acts. :
The strict observance OF The statute in regard to
| the formation OF jury cannot be dispensed
| with" In Ramey VS.. the Stale l9 Tex. Court Of
| Appeals. 4Sl). The court says that "a valid in-
| dictmenI Is an INDISPENSABLE prerequisite 10 a
| legal prosecution for felony"
In Finley vs.. The State u Ala, POD the court.
| alter referring 10 an Unauthorized order made by
| the lower court IN procuring i Grand jury, says
| The exercise OF such power by The court
would be violation OF the spirit of all our egis-
| lioh aud would Convert The G!and Ju:y nom 4
! dIstinci, inde2ende Ut sbOdy, drawn and sum-
moned by officers specially charged with that
duly, Into mere dependency of The Count,
| chosen by lis absolute Will The PRACTICAL lie
suits OF such mower are too apparent 10 require
| discussion OF statement. There IS no reason for
hmpdfling TO the Court In this ms auce more than
| mere error; bur The power exercised In III hands
| OF cdpricious or an unscrupuIOus Judge would
| destroy the purity aud Independence OF the
Grand jury aud pervert 1t nom all The purposes
OF It's intention.
There aie uumberless other authorities to the
same point but ii Is useless TO Indulge In FUR
| tber citations. And these authorities are de-
| termindtlve of tie other form III which one Of
| The respondents counsel sales his position, 10
| VII: Ina, the court having Obtained jurIsdic-
| ton of the matter of forming Il Grand jury By
FIRST making Il valid order mat certain jurors be
| drawn from tie box retained or thus acquired
power TO make the subsequent invalid order that
| other Jurors be selected by scott. But that was
| the exact slate OF facts in many OF the cases
| above cited. Ia finley vs.. The STATE, for Ia
stance, the Court had first made legal order
| iiaI certain grand jurors be properly Gr!wu
| aud n aiierWIGd made IN legal order for The
! procurement Of other jurors. The fact IS that
| Tie jurisdiction of tie respondent TO legally i'm
| panel Grand jury did not come ftom any order
| which II made In The premises. Thai juIlsdic
| ton came from the law and WAS vested III the
court before any order was made by II.
But that power was limited. There was
| room for the play aud exercise OF discretion
| within the Enclosure: hut the Court could not
| get beyond That without Overlapping or breaking
| down The barriers. Tie appointment Of Scott
| was an act entirely independent OF, aud distinct
| rom, the order for the drawing OF jurors from
| the box; and II there was any power TO make ii,
any previous action OF the Court. AS said IN
! High on tx. l.. Rein. (Section 774. I'd Ed a
| court " Will not be permitted 10 make a jun isdc-
! lion Tor Itself, by coupling matters beyond its
control with those upon which II may rghlfuily
| adiudedte."
Our conclusion is that the court below had no
| authority IN law 10 appoint said Scott to select
! grand jurors, because there was no case 10
| which the power of appointing an ellsOr applied
| CONSIDERING THE REMEDY.
Is prohibition the proper remedy?
| Prohibition lies IN all Cases where there have
been proceedings without or In excess OF Jar.
| lSdletion, and there us not plain, speedy and
adequate remedy IN The ordinary course OF law -
&C. Z. p, Secs HOP aud 1903 IL the views
| hereinDefore expressed are correct, II Is clear
that the appointment of the (su-ealled) ellsor is
without jurisdicGlou." jurisdiction - usually
defined as ''the power TO hear and determine''
but, OF course, 1t is difficult to express, In alb
stIact terms, statement Of the distinction be.
tween error 10 exercising Jurisdiction, aud juris-
dic'lOn Itself. That can be readily applied TO all
cases as they may arise.
The law intends to 1x definitely everything
| that can 10 lis nature be 50 fixed, as TO leave
as Elite as possible 10 The Judgment or caprlcs
| OF those who administer IT. but as many future
| events cannot. tn the nature of things, be fore
seen and provided for II follows uecessaril that
much must be left TO the discretion of courts
and other tribunals. And the main test OF iu.
riadlciion In any particular matter Is whether or
uct dlsci elton Is given The Court as to such mat.
tel. In the matter before US. Tor instance, IL the
law intended to give the power TO appoint an
eltSOr in the event OF disqualification of the
Sherid 1t Is apparent that the law could not de-
lermine 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 actuaed by "bias or pre-
| iudice."
| Consequently the determination OF the issue
when properly made, of such disqualification, Is
| necessarily left 20 the discretion OF the court
and II has Jurisdiction To hear and determine
that issue But when There Is such disqual.
hcation, then there Is no discretion given TO de
ternlne whether ellsor should or should mol
be appointed. Consequently. when there Is suct
an issue made aud the court finds against the dis
qualification, or when, as IN the at bar 1t /.
admitted there was no such disqualification, then
no Jurisdiction exists to make the appointment
And lie jury not bein. legal body, aud the SO.
called Indictment being VOID, then, as before
quoted from Levy VS.. Wilson, "the court has no
| Jurisdiction to try the petitioner upon it," The
conclusion follows that the proposed action oi
The court would be without and in excess OF IL.
| jurisdiction.
ONE OTHER QUESTION.
The only other question is: Would petitioner
have plain, speedy and adequate remedy 10 The
| ordinary course OF law?
| II there be such remedy It must be by appeal,
Bur IL would be a difficult proposition to main
| tain that a defendant IN criminal case, forced
| through ali TIL stages OF trial for felony With
out any indictment against him, or, which Is the
same thing In effect, upon a void Indictment
would have plain, sTeedy and ad quate rem
eGy, because. alter conviction and judgment
and perhaps after suffering The ignomny OF I'M
prlsonment In The State Prison, he could have
the illegal proceeding reversed on appeal But
| II Is not necessary 10 discuss that question, be
cause 1t has been held several times by this
court That The point here made by petitioner
|
our predecessors in People vs.. Soutuweil 4t
Cal, 14l.
In that case the lower court had made an order
fecliing that there were objections 10 the Sheriff
ana that the court intended 10 submit certain
charges against him 10 the Grand jury and fol-
that reason appointing the Coroner TO summon
the grand jurors. The defendant attacked ir
the court below the legality OF The Grand Jury
upon tue ground OF such pointment OF the
Coroner by moving to set aside this Indictment
On appeal this court first held that the appoint
msnt OF the Coroner was Illegal that the ques
INN a Ah m ti,. ,l.a
judgment should be reversed; saying amonl
other things, that "a due regard TO The rights Of
all persons accused, or to be accused. by the
Grand Jury required that that body should bt
summoned by The officer inIrusled by law Will
the performance OF that duly" But a rehearinl
was granted, and after further cOnside ration the
court (Waldce, Z. j., dissenting and adherlng tC
the former opinion) held that Sin its legal elfecl
the motion was challenge to the panel" and
that, as the objection 10 the summoning of jury
by the Coroner was not a statutory grounu Of
challenge to the panel, the defendant had nc