The record-union., 1891-12-14
anunl gnki,,s atr1nnrr.

/ that duty. Section 226 of the Code of Civil
! Proce lure provides ''Wf lever Jurors are
| not drawn or summe ned TO attend any court
| Of e ord or session Il ereof, or a sumcleht
mum Der OF Jurors fail 10 aprelr. such court
| may order sufficient number 10 De 10 irwin
/ drawn ana 81 mmoned 10 attend Inc court, OF
! il may by an order direct the SnerlII OF an
elisor chos e bv the C cnpr forthwith 10 sum
| mon SO many good and awful men 20 serve as
jurors as rnar 'e required and in either case
! such jurors must be summoned IN the nsh-
| Der provide il the preceding iecIlon
/ This section does rot, when piorefiy
construed, give to the Indge ann AN n ap- D.
son to complete the ptnel, without feIefehce
| to the Sheriff or his dlsqualifications. II such
were the intention OF the law 1t would nave
| been more clearly expressed by omltung the
! word Sheriff altog sther, and SIMPLY proNlullg
| that the jurors snould be selected by some per-
son named for that purpose in the order, ana
| then the court would have been left with COM
| plete discretion to select the Sheriff or any
| other person to execute the order; but sucn is
| not its language, and, giving due effect 10 tne
| word "eliSor'' in the connection IN Whlcn IL IS
| here used, the true mealing of this section IS
| that the court shall direct the. .Sherln 10 sum
| fcation some person to act in his place. But
this error of the court did not convert the body
| impaneled by it as Grand jury into oody
| of usurpers without any semblance OF au-
! thority, and whose accusations are mere NULL
! ties which the court is without jurisdiction TO
| entertain. The court has undoubted authority
| 10 impanel q Grand Jury.
| It's order made for the drawing was regular,
and when in due course of the proceedings GER
tain OF taoSe drawn were excused from SerN-
ing, and there did not remain sufficient
/ number Of competent jurors to form the p 4nel,
the court was called upon III the eXtrclse OF
its jurisdiction to obtain additional Jurors,
and how this should be done was a matter for
the court to determine by its order and in
| volNed the exercise of discretion as to whether
they should be drawn or summoned, ana IN
the event that the latter mode was adopted,
| required the exercise of judgment ana de-
cision whether under the law ttie execution ot
its order should be directed 10 the sheriff or
some other person.
That the Judge of the court was thus called
| upon to do what the law required1n the prem
iSeS is evident, and that this was the exercise
of judicial function on matter over which
! he had perfect jurisdiction is TO my mind SO
clear that the mere statement OF the PROPOSE
ton ends all argument upon the point. The
right to act in the matter at all ana 10 decide
for the time being what was the law applicable
to the proceeding before the court constituted
jurisdiction in ey cry sense of that ttr.n and
| no mere error in The decision OF the question
thus regularly before ii could deprive LIE court
CT jurisdiction over that proceeding or make
its orders therein subject to collateral attack
| as absolutely Mi and void. The court having
this jurisdiction over the several procee dings
| il follows nee -ssarily that the jury impaneled
by it is q de tacto hody, having the right to ex
eIcise the functions of a Grand Jury, and
| whose indictments can only be quest oled in
the court to which they were returned with the
right to appeal from any judgment therein.
! Every possible objection which under the law
be taken to the formation OF Sucn a jury
must be presented by the accused in that
court, and not by an independent and
collateral action in anJther court. That the
objection Iere urs ed against this Grand Jury
is a mere irregulality and does not at all affect
the jurisdiction OF the Superior Court over the
| indictments returned against the petitioner,
| was in my opinion clearly held in the case Of
| the People 81 ainst SOuthWell, 10th Cal. 141.
| In that case the jurors had been selected by
an unauthorized person, and this court on ap-
peal said this was only an irregularity, and
one for which the statute didnot even provide
a remedy. In thus deciding and Affirming
Judgment of conv viction the court necessarily
| neld that such an irregularity was not fatal to
the jurisdiction of the court to try "a defendant
upon an indictment returned by a Grand Jury
| many OF whose members had been irregulariy
summoned. 1t was there said: 1T is claimed
on behalf of the defendant that if the Grand
Jury was not selected and summoned as re-
quired by law it was an illegal body which
usurped the functions of d Grand Jury and its
&C S are W holly void"
And in the course of its opinion the court in
pointing out the difference between a Grand
Jury which had technical elects in its organi-
zation and a bCdy wholly without authority
and whose indictments could o. be properly
considered by the court, further said:
1T may be that if a paper be presented to
the court in the form of an indictment, but
which found by a body of men having no
semblance of authority to at Grand
Jury it would be the duty of the court 10
strIk9 it from the files as a more nullity, and
as utterly worthle. for any purpose. 1t
would have no proper l1ice upon the files
of the lrt, and ougnt therefor 10 be removed
from them. But the motion to set aside the
indictment, III on Section 27S. would have no
application TO such u case Under that sec
tion the motion is addressed TO irregularities
in the proceedings o. valid Grand Jury, ana
not to Irregularities III the formation OF the
Grand Jury itself. But it is not a very slight
irregularIty which may OcCut in the ior-ia-
ton ola Grand Jury which woald justify the
court in striking the Indictment from the
files ais 81 nullity. Otherwise there would be
no reason for Challenge to inpaEet, as all
elections 10 the Grand jury could be taken
n no
fi.es Tie true distinction lies betwiel the
acts OF q BODY having no Semblance OF au-
thority TO act at all, and of a BODY which,
though moi strictly regular in its organ ttion,
is neH ertheiess acting II ler color o1 authori Y.
In the former case the acts OF the wholly
Illegal body are nuliiteS, having propaT
place among the files of TIE ccurt. But IN me
latter case Section lS2 of the statute prGvlCes
the only metaod by which mere Irregularities
in the formation OF the GranG Jury can be in
quiIed into. The case at bar comes within
the latter category.
'sOn the lacts disclosed by the record it can
not be affirmed that the Grand jury had no
semblance OF authority and was acting with
out color of legal right. 1t was regularly
drawn from Grand Jury list, duly certified,
and some OF them having been exc TIED the
deficiency was supplied by a Nenlre, properly
issued by the orutr OF the court.
''We think the court erred in directing the
venire TO be summoned by the Coroner in
stead OF the Sheriff. But this WIS only one OF
the irregularities for which the statute had
failed To provide IL remedy. A Grand Jury
summoned in pursuance OF venire Gully
issued cannot be said to be a wholly illegal
body having no seInblance of Authority,
merely because the court erroneousl directed
the venire to be served by the Coroner Instead
of the Sheriff.
1T was ar error of which the defendant.
perhaps, might Justly complain, but the stat
ute has provided no remedy for it,
This decis Oh has never been oyerruled but
on the contrary has been Tept q -edly referred
to authority In later cases in this GO art.
and seems to be conclusive of every question
presented by this record. 1nueed, my atten-
tion has not been called to the decision of any
court, either in this State or Iels sewhere in
which 1t has been held that an irregularity IN
the form alton OF a Grand Jury of the charac-
ter here complained of can be corrected III a
collateral action.
In Wharton's Criminal Law and Practice
Section $50 it is said: "If the body by whom
the indictment was found was nett her de lure
nor de facto entitled TO act sucn, then the
proceedings nuIlity, and the defendant
at any period when he is advised OF such null
ity is entitled to attack them by motion to
, quash or by plea in abatement, or when the
objection is of record, by motion OF arrest in
Judgment lie is IN most Jurisdictions shell
| tered by constitutional pl DIVISIONS from prose
| cution, except upon Indictment found by a
| Grand Jury, and when the body finding the
indictment is not Grand Jury, either de
iure or de facto, then the prose cution must
fall when the question is duly raised But a
| de facto Grand jury cannot be deemed q null
iIy under this provision OF the Constitution" 1"
This seems to me to be the true rule and in
| the case of eX parte Raymond, 2? Pacific Re
ports, 500, we held upon the same state OF
facts disclosed in this record, but this same
Grand Jury was a de facto Grand Jury. This
: being So in my opinion. the Superior Court
has Jurisdiction to proceed upon the indict-
| InentS, and any Judgment which it might