The morning call., 1892-01-02
THE FATAL ERROR, ,,
LrRoM TIE rREsNo ExrosIroR. ]

IRON THE FRESNO EXPOSITORl
The Record Union in a temperate article con-
uoyerts the position taken by Judge Wallace IN
The matter Of Tie appointment Of an elisor TO
summon a portion OF the late San Francisco
Grand Jury. Thus our contemporary says:
Judge allace replies TO the opinion and
judgment OF The Supreme Court in the san Fran
cisco Grand jury matter. The burden of his
reply. lie pivotal point upon which it really
tuInS, Is this, that lie Sheriff and Coroner were
disqualified 10 serve yeniies for grand Jurors be
cause Tie statutes require a Grand jury 10 inves-
tigaIe the conduct and record OF all public Of
hcisls. This being The law the Court; lie SAYS
took judicial know ledge Of u. Hence Il was I'M
necessary 10 affrmatiYely make the disqualified
ton appear as jurisdIctiJnal fact precrdent.
The fatal error IN tbls reasoning Is that II tie
ground aiken by Judge Wallace Is sound then 10
public officer could lake any part in the forma-
ton OF any Grand jury. Not the Judge, for bis
acts are subject 10 the inQuisitorial power; not
tie clerk. for his office must be investigates not
any Of Tie twelve Judges who select the IA
names from which the nineteen are 10 be chosen,
Tor each OF the Twelve MI public Office that
may be inVeSl gated.
1T Will occur TO the unbiased mind that under
such method OF reasoning there could be no
GTand Jury al ALL
Tie fatal errol" in this argument lies in the
fact hat II 0mts TO give any weight whatever TO
a controlling factor in The proposition, namely:
That The elIsor Is an Indifferent or impartial per
son. both as respects the Judge and The Sheriff.
lie chooses whom he pleaseS 10 serve as grand
Jurors without reference 10 any other question
than their btness.
II might be urged against This position, how
ever, that the Judge might appoint biased per
son as ellsor, but such line of argument
would lead Us away from the actual and into the
domain OF the possible and imaginary.
Moreover, II tie Judge should appoint pTriu
diced person as ellsoT. II Is 10 he presumed that
the law provides i means Of showing his Gis-
qualification and thus annu!liGg his action. Our
contemporary seems 10 forget the fact that In
tie hnallly OF things, confidence must be re-
posed somewhere. Reduced 10 ils Ultimate
meaning. the position OF The Il cord Union
o BE- Il Grup Shn he
the Sheriff rather than 10 Tie Judge thus max.
ing its contention an Indefinite one.
Judge Waiace's position that the Sheriff was
challenged by the law as being disqualified
fact Of which lie, Judge, was bound TO take
notice, may be new, but IL is certainly supported
by as re believe, an impregnable line of reason
ing
In another part of argument The Sacramento
paper says:
- But If the reasoning OF Judge Wallace be
sun accept as sound, then his court should not
have accepted half Of the Grand Jury as II did
from among those who were summoned by the
Sheriff"
The fatal error" in this proposition is that our
contemI oTaTy does not stale all OF, or even the
most important facts. and therefore its conclu-
stons, whatever they may be- could not be detini-
Tive OF anything. An important fact which the
Record Union omts 10 discuss or even TO
mention is that the Sheriff. did not and
could not eXerclse any choice in The
matter Of summOning The persons whose
names were drawn from The Grand Jury box.
de was simply given legal command with the
names Of a number OF persons written in IT,
and all that be did in The matter OF summOning
them was purely ministerial lie did not select
single person Of his own choice. All that he
could have done was TO report absent those
whom he might have found, or make an arrange
meBt with those whom lie did find, that they
should fail TO appear.
II. however. no had been given a cor mand to
select named number of persons gene ally from
The body OF The people lie would have been az
liberty 10 exercise his own ehOics as o. whom he
summoned.
Ii is our modest opinion that our sAera mento
contemporary has not made an .rTepa ga bic
breach IN Judge Wallsce's argumeB..