The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1891-12-13
Justices Beatty, Mcfarland, Harrison,
Paterson and Gar0uttG Uphold
Judge Murphy.
TEE FULL TEXT OF THE DECISION.
All Bo9iIailm Facilitating With Enthusiasm
and -AS2nIIIn3l BTllST VIII
Not Be Prosecuted

Joy kills had broken through the thin parl-
ton that divides wisdom from madness.
Sudden joy does net kill.
Tie Grand Jury has been declared an lille
gal body, yet every nOodler in San Fran
cisco is alive and well, and if Buckley has
not learned that his health has SO much i'm
proved that lie may return to San Francisco
at once it is because he has not received his
copy Of the great metropolitan daily pub
lished in this city every morning, which
stood 10y him in the days Of his success and
which Will probably stand by him again,
row that tile days Of his adversely are over.
The Harp that once from Stanslaus halls
in haste and silence fed will soon be in
those halls again. Now the Grand Jury'S
dead Senator Williams and Mr.. Richard
Chute and ex-Di>triet Attorney Bruner of
Sacramento and many others who have lived
IN fear and trembling since Judge Wallace
made his celebrated charge to the jurors
SUNNI ned by elsor Scott are we'll pleased
witt the Supreme Courts decision. The
cloud, of care that have darkened many
Ugh; Of the Legislature are diSpelled.
THE MULTITUDE Is DESPERATE.
While those who are most deeply inter-
e-ted IN having the Grand Jury declared
iNega, are rejoicing, a feeling Of desperation
Is dsl layed by the great multitude, which
LoIed that the augean stables of Ca ifornia
. lItics were to be Gle ansed.
The Grand Jury that has been declared
Illegal was impanrlsd on August Goth, and
consisted Of tie following named:
Barclay Henley oremam J. OIL SansOme street
lyue Graham Secretary POI Front street.
j. II. Nuudy, ) Front street.
James ". Mcdonald. 80 Pine street.
Dr. {. D. Cleveland. 600 LeayeuwoIth street.
Jeremiah Lynch, Baldwin Hotel.
". >. ZrllIu, $50 .alket street.
james Denman, 2lU1 Webster street.
=. J. Kennedy. $50 Market street.
Etuteu Tucker, 4l3 Washington street.
William Gun, IS and 20 Front street.
Gtot-e II. Walker. 5lG keaTHy street.
William NJ. Cubery. 5S7 Mission street.
Henry L. Dodge ia Market street
CHARLES HUlbTOUk. Market AMI Beale Streets
Marx sheldon, Suffer street.
John 4. Lennon, 3l5 Clay street.
Ltrumanu Sachs. So Sansome street.
L " McAfee, 10 Montgomery street.
OF these thirteen were summoned by an
eli~Or b cause Judge Wallace had reason 10
be Jrve that the list of names selected in
the usual way had been tampered with.
TO WORK WITH \ WILL.
Tie jury went 10 work with will, and in
order 10 obtain some light on the manner in
which the Legislature had been handled by
ertain corporations summoned Richard
Chute and Sieve Gage of the Southern Pa
MY.
Gage and Chute refused on the ground
that the jury had been summoned in viola
tlun Of law and was therefore an illegal
body. he matter was brought before Judge
Murphy Of the superior Court, VINO upheld
the railroad men. The matter was then
brought 10 the atteGtiOn OF the Supreme
Court, which held that the legality OF the
jury could not be questioned by a witness.
The Grand Jury found several indict-
uents, two # which were against ElwOud
Bruuer an Assemblyman. who was accused
0i selling places on the San Francisco po-
lice force and Of committing perjury when
questioned ABOUT tie matter. He moved to
set aside the Indictment on various grounds,
and also interpnsed demurrer. The no.
TIN to set aside was denied by Judge
Wallace, but the demurrer was allowed TO
stand. In the meantime Attorney General
Hart, 10 test the legality OF the Grand Jury,
pptitiOned the Supreme Court for a writ of
review of Judge Wallace'S actions, but this
was refused.
BRUNER'S RESTRAINING ORDER.
Bruner then obtained temporary prohi-
billion from the Supreme Court restraining
Judge Wallace from drawing petty jury to
try him on the indictments. He claimed
that the law relative to the drawing of a
grand jury in this city is void, because 1t off
Tered from the law In other counties, and
lie questioned the right of Judge Wallace to
draw grand jury as this grand jury had
been drawn.
These questions compelled the Supreme
Court to decide whether Judge Wallace had
erred IN appointing an elisor to summon
grand Jurors before all the names in the box
had been drawn. and whether other officers
should not have performed the task given to
MI. Scott
The decision, covering twenty eight pages
ot typtwriting, was the work Of Justice Nc
riauc. II pronounced the Grand Jury
IN Illegal body and was cOHcurred in by
Harrison and Paterson. Chief Justice
t2a.tTfy al dppi1al hat bA 10
bat dissents from the opinion of the
three above mentioned in holding that
Biuner pursued proper course in apply
Ing Tor a writ of prohibition. Justices
De Haven and Sharpstein, in brief dissent
ing opinions, declared that the Grand Jury
as summoned by the eiisOr is a legal body.
Justice GarDutte wrote a special opinion
ccncurring with that of the majority.
following is the opinion of justices Nc
Farland, Harrison and Paterson, which Is
the decision OF the court:
TEXT OF THE DECISION.
This is an application for a writ OF prohibition
10 prohibit the Superior Court of San francisco,
Department Number SIX, aud the Judge thereof,
/ ON proceeding further against petitioner upon
two certain papcr-wiitings purpOTting TO be in
dictmenjs. Tie main ground OF The petition Is
ihat The body OF men who presented said writ
lngS had no legal existence as Grand Jury and
thai, therefore, the respondents have no jurls-
dletlon or authority TO arraign or try petitioner
upon The same. Upon The record presented two
principal questions arise First, was said body
IA legal Grand Jury? and, second If II was not,
tnen Is prohibition proper remedy2
The material facts in the case are undsputed
and are as follows: The respondent, the PresId-
ing Judge, made an order that TWEEN y-lve names
be drawn In the usual way from the Grand
jury box" (Which contained the names OF IA
persons selected by the twelve Judges of The
Superior Courp. for the purpose of procuring a
Grand jury. Alter service by the Sheriff on all
OF said persons who could be found, eighteen OF
them appeared. Eight OF lhem were excused by
The Court for good cause and The others were
accented. drlN frnn tta fHya, "A
jury box On which there remained more than
100 names was made; but thersupon the Court
made The following order:
Aud II now appearing to the Court that Of The
entire number OF persons drawn TO serve as
grand Jurors there are only the number OF ten
proper aud competent to serve and not excused,
IL Is now here ordered that sufficient number,
TO WI, the number of nine good and lawful men,
De iolth"llh summoned by an eiisOr appointed
by he Court here for that purpose to be and an
. ar before the Court here on Thursday, August
20. 1921, al J. o'clock msIidian. TO comp Ell 10 the
sad Grano Jury, and that Henry II. Scott be,
and Is hereby, appointed such rIsor; and all fur.
ther proceedings ~ impaneug the Grand Jury
AT u o'clock meridian"
Another order was also made formally ap-
pointing said Scott elisOr, who. after being
sgoTn such, returned nine other peTsons as
grand jurors. The whole OF said nine persons
were accepted, and thus The requisite number OF
nineteen grand jurors were procured and sworn.
No reason was given why The jury not COM
pleied BY an additional drawing from the Grand
jury box, nor was there any cause why when
me etilei method OF getting Jurors was adopted,
stead OF an eisOr. No charge of Partially, in
telest or disqualification OF any Kind was made
against the Sheriff by affidaylt or 10 any other
manner, aud the record shows tnat the Sheriil
was discarded and the eiisor appointed simply
because the Court chose TO DO so.
And the contention OF respondents counsel is
that the power OF Judge 20 appoint a private
person 10 select jury Is unlimited and unquall-
lied by any provisions Of law any consdera
ions whatever his viii being supreme In The
premises. No question, therefore, arises here as
To lie jurisdiction OF a court 10 pass upon The
issue Of disqualification of a Sheriff in such d
case. because heIe there Is no such issue.
PROVISIONS OF THE LAW.
The provisions Of statutory law upon the ques-
tioBs here involved may be somewhat briefly
stated. Tie formation OF grand aud iiial 1uries