The record-union., 1891-11-17
BRUNER'S PETITION.
Was Judge Wallace Justified in Ap-
pointing an EIisor?
Arguments on the Question Before
the Supreme Court in
Bank Yesterday.


TO restrain Judge Wallace of the Superior
Court Of San Francisco from proceeding
against him on the indictments recently
found by the Grand Jury of the metropo-
lis, charging Bruner with malfeasance in
office and perjury, was heard by the Su-
preme Court, sitting in bank, yesterday
at the Capitol.
Mr.. Bruner was in court accompanied
by his attorneys, J. c. Campbell and ex-
Judge Chamberlain. Judge Wallace and
the San Francisco Grand Jury were rep
resented by Attorney General Hart, Dis
trict Attorney Barnes of San Francisco
and ex-Judge a. L. Rhodes. Every
available seat in the courtroom was occu-
pied by attorneys, politicians and other
interested parties.
CAMPBELL's ARGUMENT.
The Bruner petition was the first mat
Ter taken up, and Attorney Campbell
proceeded at once to give the Justices his
reasons for believing that the Grand jury
which indicted his client is an Illegal
body, and therefore had not the power to
tndict anybody.
Mr.. Campbe said that the indictments
were illegal in the first place, even if the
Grand jury were a legal body because
one of them set forth that the alleged
crime was committed in San Francisco
County. If such a crime had been com
mitted it must have been in Sacramento
County, therefore the Grand Jury had no
jurisdiction. The second Indictment was
1or perjury alleged to have been COM
united when giving the testimony upon
which the first indictment was found;
therefore If the Grand Jury had no juris-
dlction in the first place, the alleged
perured evidence was immaterial and
- i'm fctT ,uf, ,1c toll
Mr. Campbell next attacke the legality
Of the Grand Jury itself He read Sec
slon 8 Of Article / Of the Constitution
OF California, which provides thata Grand
jury must be drawn and summoned"
IN each county at least once year. He
laid great stress upon the conjunction,
and said that this term proved that
JUDGE wALLACE's METHOD
Was illegal. If the section had read
''drawn or summoned it would have
been discretionary with Judge Wallace
whether he drew the names from the box
IN the customary way, or summoned the
jurors himself, as he had virtually done.
The section did not contemplate that IA
Superior Judge should accept ten men
from the regular Grand Jury panel, ex-
cuse some Of them, and then, ignoring
The balance of the Venire, appoint an eli
sOr to complete the panel. The Constitu-
ton designated in unmistakable Ian
guage the exact manner in which Il
Grand Jury shall be drawn, and virtu-
ally prohibited the adoption OF different
methOdS-any other method was viola
CiOn of the Constitution. One Of the fun
damental principles of the United States
Constitution, as well as that of California.
was that no citizen shall be deprived OF
mis- liberty or his property without due
process of law. In the petitioners case
this principle had not been carried out.
The manner of
SELECTING THE GRAND JURY
Which indicted him was an innovation
1t was an argument III itself against itself
Judge Wallace should have first shown a
right to proceed as he did. When an in
dIvidual desires to do something which
The law does not provide for on its face,
he must show a better reason for so do
ing. Before Judge Wallace could pro-
ceed as he had there should have been
some fact Warranting him for not follow
ing out the strict letter of the law. From
whom did he receive his power? From
the people. And the same people also
elect a Sheriff in whom they vest the
authority to summon the Grand Jury
after he is provided with the names. Be
fore Judge Wallace could legally appoint
an elisor to usurp the duties of the Sher-
if, it should first have been shown that
the Sheriff was not qualified to act-either
by being an interested Dartv or by hay-
But, argued Mr.. Campbell, the law had
even prov ded a successor to the Sheriff
in case Of his disqualification. 1t had
provided that when it appeared that the
Sheriff should not act, the County Coro-
ner should summon the jury. 1t was not
until after both the Sheriff and Coroner
were disqualified that an elisOr could be
appointed.
WERE NOT DISQUALIFIED.
Mr.. Campbell defied the opposing side
to find a single adjudicated case in all
their law books wherein the acts of a
Grand Jury which had been summoned
in the manner that Judge Wallace had
adopted, had not been set aside. When it
was shown that the proper officers were
not disqualified, it was unlawful for any
one else to summon the jurymen.
In the present case, continued the at
torney, the Grand Jury had not been
selected by the proper officers, but on
The contrary by a private individual.
Did the court have the right to appoint an
elisor under the circumstances? Was
there any occasion for it? Certainly the
records did not show it. There was no
showing that either the Sheriff or Coro-
ner, or both, were incapacitated from act
ing.
Judge .McFarland-Does it appear from
the record, Mr.. Campbell, that the court
below had no reasons for the action
taken?
Mr.. Campbell-It shows that the action
was OF the courts own volition, no rea-
son being given whatever.
COMPARED TO THE CzAR.
ResUming his argument Mr.. Campbell
declared thai if the Supreme Court should
sustain Judge Wallace it would make the
Gar of Russia blush with shame and he
would send to this country for a patent
on the process. The rules of the San
Francisco Superior Court provided that
the various Judges of the court should
furnish the names from which the Pre-
siding Judge shall draw the Grand
Jurors. Judge Wallace had violated one
OF his own rules, to say nothing of the
law.
Mr.. Bruner, said the attorney, was
placed in an awful predicament by the
high-handed manner in which Judge
Wallace and the San Francisco Grand
Jury had been carrying on matters. II
he failed to appear before the Grand Jury
he would have been sent to jail for con-
tempt; II he did appear before the Grand
Jury, but refused TO testify against him
self a similar fate awaited him. then by
testifying he is indicted for an alleged
crime and because the Grand Jury does
not see fit to believe some of the testi-
mony on which they based their first in
dictment they put a second Indictment
this time for perjury-against him.
Chief Justice Beatty asked the attorney
If he thought that q writ of prohibition
was the proper manner in which to reach
the case.
Mr.. Campbell replied in the affirmative
and then read an Eastern decision in
which it was set forth that prohibition
was preferable in cutting off illegal pro-
cedures, rather than correcting the errors
after they were committed. Mr.. Camp
bell concluded his argument with an APP
peal 70 the court to consider well the
scope of the question before deciding.