Los Angeles herald., 1891-10-01
CHUTE DISCHARGED.
Judge Murphy Gives Him His
Liberty.
He Finds That He Was Not in
Contempt.
The Grand Jury Declared to Be an
Illegal Body.
Chute Again Cited to Appear Before 1t.
Judge Murphy Also to BE Sub
p9naed-Stephen T. Gage
Heard From.
Anosia.sa Press Dispatches.


known Republican politician, on Thurs
day last was fined $500 and was SEN
fenced to five days in the county Jail,
by Presiding Judge Wallace, OF the
superior court, for ignoring subpoena
of the grand jury to appear before them
and give testimony which, it is under
stood, was wanted in connection with
the investigation OF the scandals affect
ing the last state legislature. After his
sentence Chute procused a writ of
habeas corpus, alleging that the grand
jury, which had been chosen by an
elisor appointed by Judge Wallace, was
illegally constituted and had no power
to summon him. Judge Murphy today,
in deciding the habeas corpus case.
ruled that he, az judge of concurrent
jurisdiction, has power to decide legal
action taken by the presiding judge,
and that the question at issue is not one
habeas corpus.
He Furthermore decided adversely the
questions whether the system or mode
employed by Judge Wallace in selecting
the grand jury was legal and proper,
and whether Judge Wallace had legal
power to appoint an elisor. The court
room was crowded and the decision was
listened to by the crowd, with eager at
tention.
Judge Murphy devoted many pages
Of his decision to showing that any per-
son unlawlully imprisoned or restrained
of his liberty under any pretense, what
ever, NAV prosecute writ OF habeas
corpus to inquire into the cause OF such
imprisonment or restraint.
He disposed OF the Cannon case by
stating that the supreme court had
already decided in Levy against Wilson
that the grand jury which had made
the complaint OF Gannon's contuma-
cious conduct in refusing to be sworn
before them, was legal grand jury.
And hence that being the fact, the in
dividual members OF the jury must be
deemed to be officers of the court in
which they are regularly appointed and
qualified to exercise judicial functions
for the investigation OF oHenses cog
nizable by the grand jury.
s.The case of Cannon continued the
Judge. 'is clearly distinguishable from
the case at the bar. Therefore the
supreme court held that the grand jury,
whose authority he refused to recognize,
was legal grand jury. In the case at
the bar the very question to be deter
mined is whether or not it is legal
grand jury"
Farther on in the decision. the Judge
saws: II am forced to the conclusion
that under the facts in this case, the
presiding judge had no lawful right or
authority TO appoint Mr.. Scott an elisor
in selecting and summoning nine SUD-
posed grand jurors, who were by him
returned into the court, and who were
subsequently by the presiding judge,
sworn in as such, and now claim to con-
stitute part of the panel OF said grand
jury. Such being the case, it necessarily
follows that the said niue jurors so sum-
moned and returned by the elisor were
never drawn or summoned in pursuance
of the law, and not being legally drawn
or summoned, as q necessary conse-
ouence from the facts in this case,
there were but ten legal jurors drawn
and summoned. Indeed, In contempla-
ticn of the law, these nine persons thus
returned by the elisor are simply intrud-
ers, present in the grand jury room
without authority, and can in no man
ner be classed as competent to act and
serve with ten legally drawn and sum-
moned jurors. And, confessedly, it is
clear that the ten who were regularly
drawn and summoned could not consti
tute q grand jury, because the grand
jury, as heretofore shown, is composed
of nineteen.
Therefore, hold that the body now
claiming to act as grand jury, and
whose behests this petitioner has refused
to obey, and for which, by the judgment
OF this court, department number six,
be was adjudged guilty of contempt,
and sentenced to be imprisoned, never
had any legal existence, and thai it was
not and could not legally be adjudged
contempt for any person to refuse to
obey anv order made by that body.
Such being the fact, it was outside of
and beyond the legal power of this court,
department numker six, under such cir
cumstances, to pronounce the Judgment
of guilty OF contempt as entered by that
department, and that judgment so pro-
n0unced is void. inasmuch as the juris-
diction of said court was exceeded.
cas- understand the argument of the
special counsel for the respondent, it
was claimed that the presiding judge
had the authority to appoint an elisor
under sections 226 and 227, Q. O. r., in
dependent of and without reference to
BeCLlUn 4ltZ Oh tDo pOilLlcdl COuos Ii IS
the unQuestioned rule of the law that
the several sections of our code. in pari
materia, should be taken together as
one law, and go construed if practical,
so that every provision shall come in
force.
''If I am correct in the propositions
here discussed, and more particularly
the last, there can be no doubt or ques-
ton as to my right and duty to order
the discharge of the prisoner. In in
vestigatng this question, knowing it's
Importance, and considering the conse-
quences that may follow the decision
herein, have devoted my entire time
since its submission to the matter. l
have had no aid or advice in investigat-
ing this case, except the counsel who
publicly appeared in argument for the
came. The conclusion that I have ar
rived at is the result of such investiga
tiOn in my deliberate Judgment, as to
what the law is in the question in
volved."
The second subpoena from the grand
Jury, summoning Richard Chute to ap-
pear rs witness, was served upon the
latter Just after bis release by Judge
Murphy.
Judge Murphy will shortly be served
with subpoena to appear before the
body whose legality he has just passed