The record-union., 1891-12-14

ther and examining into the grounds upon
which petitioner, in that particular instance,
rested his charges of the invalioity of the jury;
the case would have stopped al the threshold.
and the question was fully presented and
eiaborately argued by opposing counsel. Lou
derback, for petitioner, argued strenuously
That prohibition wss the proper remedy, ana
cited numerous authorities to sustain his po-
sition; while the first point made by counsel
for respondent q. y. Z. wilson, was that
prohibition would not lie-authority also be-
ing cited TO that point. And SO II the court
had agreed with the petition OF respondent
1t would have dismissed the proceedings
upon that ground. But no such hcourse was
pursued. 1t entertained the writ of prohibit
ton, and discussed thecases where it Will and
will not lie, and clearly held that it would
lie when there was an Indictment by body
not a valid and constitutional Grand Jury.
such is the necessary result of the action or
the court; and such is the conclusion that
must follow the language which is used. In
that case the petitioner, among other things,
had alleged numerous irregularities as
grounds of the illegality of the Grand Jury,
and the court in speaking Of those used this
tangn nage: Most OF the grounds stated for the
purpose are Irregularities and errors accruing
before and after the finding and return OF the
indictment. But as these are matters which
are reversible and remarkable on appeal in
the action, there are no grounds for writ of
prohibition. Prohibition lies TO arrest the
proceedings OF a judicial tribunal wlen they
are without or in excess of its jurisdiction;
and the writ is issuable only in in cases where
there is not rllin, speedy and adequate
remedy in the ordinary course OF law" But.
having disposed of these minor matters the
court proceeds: "One of the grounds stated in
the petition is, that the indictment was found
by body OF men sty-ed a Grand jury that
was not in law and in frtt a valid and con-
Stltutlonal Grand jury. If that be so, the ac-
cusatory paper returned by them to the court
be.oT as an indictment is worthless and void
People VS.. Thurston, Cal. go, and the court
has no jurisdiction TO try the petitioner upon
it, And SO the express language OF the
court is a clear statement that il in that case
the Indictment had been found by a body Of
men who were not legal Grand Jury, the
peremptory writ OF prohibition would Lave
been granted.
From every standpoint, therefore, the case
must be taken as a full authority 10 the point
that prohibition lies in the case at bar. But
when the court proceeded and looked into the
merits OF that case it found against the pc
titioner. The fact relied on was that the court
below, after having ordered some OF the Grand
Jurors drawn from the jury-boX, had then Or
dered the Sheriff TO select the rest from the
body OF the county. The point insisted on by
petitioner was that under the Constitution
Grand Jurors must be drawn" ana that
drawn meant taken from the Jury-box by lot;
and that the statutory provision allowing the
court to direct the Sheriff 10 select Jurors Was
unconstitutional. On that point the decision
OF the court was against the petitioner. While
II says that I'VE are OF opinion that the court
below, in exercising its discretion, ought TO
have ordered the panel to be flied by requir-
ing the clerk i'll open court, and in The pres
ence OF the Judge, TO draw the requisite num-
ber OF names from the Grand Jury box, in
stead of requiring the Sheriff to summon
Jurors from the body of the city and county,;
yet II holds that "the course adopted by the
court was one authorized by the code" But
If tho court had held with the petitioner in
his contention about tie Sheriff's power it is
clear that the writ would have issued. AS to
the case of eX parte Raymond, it is sufficient
TO say that distinction between mere witness
ana Il party indicted for q felony, is too clear
to need discussion
We are of opinion, therefore that there is no
jurisdiction il the respondent to proceed with
the trial OF petitioner that the latter has no
plain, speedy and adequate remedy in the
ordinary course of law, and that prohibition
is the proper remedy.
Petitioner makes the point that at the time
of the order complained of there was a rule of
the Superior Court OF fSan Francisco made by
the twelve Judges thereof, and never re-
pealed or abrogated, as follows: ''Rule 4. 1t
shall be the duty of the Presiding judge to
preside over the drawing and impanelment Of
ali Grand Juries required by law or the public
interests TO be drawn. Grand Jurors must
IN i cases be drawn from the list OF Grand
Jurors selected by the Judges of this court,
unless tae Grand Jury box containing the
names OF jurors so selected be exhausted
without securing q Grand jury" Also that
the Constitution requires Grand jury to lie
drawn, and that drawn" means taken by
lot from jury box. Also, that one of the
alleged indictments against petitioner shows
ur on its face that if the crime charged was
committed at all it was committed in the
county OF Sacramento, and without the iuris-
uIctloH Vi respondents. Also, that the trial
jurors before whom be would be tried have
likewise, teen procured by another similar
order appointing another eliSor Also that
petitioner was compelled 10 appear before
said Grand Jury and teSt;fy as TO the very
charges upon which he was indicted But as
our views heretofore eXpIes ed are deter
mtnat1ve OF the case, and as some of said
questions are renewable on appeal, we dee m
II unnecessary to here discuss them
Let the writ issue, restraining the respond
ents as prayed for in the petition
MCFARLAND, J.
We concur: Harrison, J.: Paterson, J.
a concurring opinion was also written by
Justice Garoutte.
OPINION OF CHIEF JUSTICE BEATTY
Chief Justice Beatty concurs in the majority
opinion as ,ar as the illegality of the Grand
Jury is concerned, but does not believe that
the writ ofprohibition is the process by which
the question can properly be raised
The Chief Justice concludes his opinion as
follows: las TO the objection that the indict-
ment for bribery in this case shows on its face
that no part of the offense was committed in
San francisco no answer is made and [ do
not see how any can be made But although
Ii seems pretty clear that the Superior Court
OF San Francisco has no jurisdiction of the of
tense charged, do not think this court should
interfere by prohibition until the particular
defect referred to has been called to the atten-
ton OF the superior Court by demurrer and
even tnen appeal would be the usual remedy
The other objections 10 the indictment do
not, in my opinion, involve any question of
Jurisdiction. Upon these grounus, while
fully concurring with the Jurt in its con
structlon of the statute relating to ii ar-
polntment OF an eliSor to select and summon
taleSmen, l am constrained to dissent from
the conclusion that the error of the Superior
Court can be corrected by prohibition.