The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1892-01-10
THE LATE
GRAND JURY.
EX-Jus tiCe Of the Supreme Court
Currey Oh lis Legality.
Reasons for Holding That the Elisor Was
Legally Appointed-Clear Statement
Of the Law

OF IUt Law
1.-THE article printed below was written by
Judge John Currey while spending the holt
days in the country, and sent to his friend.
Judge A. p. Catlin, of Sacramento, who,
in acknowledging its receipt, expressed his
concurrence in the opinion of Judge Currey
upon the subject considered. adding: L
think the article should be published. Your
position cannot be assaled; nobody will at
tempt it. The public needs such q clear
and brief statement of the question and its
inevitable cOnclusion."1
Was the Grand jury mpaneled in August last
BY Judge Wallace Of the Superior Court of San
Francisco legally constituted Grand Jury?
The supreme Court has answered this question,
In the Bruner case, IN the negative, and law
abiding people acquese In the Judgment, though
there are many who do so with msgiVings as 10
IT'S correctness. Inc question Is one OF great
public importance and interest, and therefore is
still open 10 fair discussion.
In my Judgment the whole subject Is deter
mined by the Code OF Civil Procedure, ana IN the
main Oy proper Interpretation of Section 226
OF that code, and particularly by the second
alternative provision of the section. The Code
OF civil Procedure contains within itself COM
plete system FOR the 70 m ttiOn and impanelm mt
OF lures-trial Jurles and grand juries. Sections
PA and PAP provide how grand jurieS must be
drawn. The first OF these sections prescribes
the steps TO be taken in the formation and I'M
parchment Of grand iuries. The number 10 be
drawn IN the hrst place, must not be less than
twenty-five nor more than thirty. The number
determined upon must be drawn from the
Grand Jury box. This being done the next
step Is 10 make list of the names drawn,
which list must be certified by the clerk of
the Court. The list is then, BY Section 2l9,
TO be placed in the hands OF the Sheriff. and
Section 225 provides that ''the Sheriff. as socn
as he receives said list or lists OF Jurors drawn,
shall summon the persons named 10 attend the
court" ete. Thus II appears that Grand Jury
uiaWD ana properly listed must be summoned
by the Sheriff. Section PAP provides that
whenever OF the persons summoned as Grand
Jurors and not excused. nineteen are present
they shall constitute The Grand Jury. Ii less
than nineteen are present the panel may be filled
as provided tn Section 226 OF this code" SO far
everything Is plain.
PROVISIONS OF THE CODE.
The record and proofs In the Bruner case show
that only ten Jurors were Obtained from the
twenty-five names drawn from the Grand jury
box, leaving nine 10 be supplied TO complete he
panel Thus the contingency came TO pass In
which 10 became necessary 10 nil the panel as
provided ~ Section 22G Of the code, which reads
as follows:
Whenever Jurors are not drawn or summoned
to attend any court of record or session thereof.
or sufficient number OF jurors fail to appear,
SUCH court may order sufficient number 10 be
forthwith drawn and summoned 10 attend the
court, OF u may, 10y an order entered In lis min
ueS, direct The Snerin ot an ellison chosen by the
court forthwith to summon 80 many good and
lawful men Of his city and county a may he re-
quired. and in either case such Jurors must be
summoned 10 tie manner provided in The preced-
ing section" The preceding 5 ion (225)
Trescrbes The manner OF summOning trial jurors
which is 10 he observed by the Sheriff or an
elsor upon whom the duty OF the summoning of
jurieS may devOlye
elton 226 provides two ways for the compe-
lion OF Grand jury IN he condition If things
IN which Judge Wallace found himself by reason
of the failure 10 obtain more than ten jurors from
the first twenty five names drawn. As Judge Of
the Superior Court having ID charge the Gufy OF
cOmuietlng the work of impanelng the Grand
jury IL became necessary Tor him 10 proceed
until a completed Grand jury should be OO.
tanned. % do this Two ways were ~ eSeDted by
The section above quoted, each OF which was as
lawful as the other, and either Of which the
Judge was al liberty to adopt. He adopted the
mode last mentioned IN sald section, as lie law
fully might do. No one can ganSay this Had
lie ADOPTED tie mode hrst mentioned In the
section he would have caused 10 be drawn from
The Grand Jury box The needed nine jurors
whose names would have been listed, aud the
list certified and delivered 10 the Sheriff 10 be
summoned as required BY Section 225, without
any direction or command from the court. Hav-
ing elected 10 adopt the alternative mode OF I'LL
ing tile panel, II became the duty OF the court 10
make an order and enter IL IN It's minutes direct
ing The Sheriff, OF an ellSor chosen by the court.
10 forthwith summon SO many good and lawful
men Of Tie CITY and county Of San Francisco TO
serve as grand jurors, as were required, which,
IN the case before the court, was niue
METHODS or FILLING THE PANEL.
It Is worthy OF notice here that the last named
mode OF filling The panel is unlike the first urO-
vided by Section 226 as to the person or officer
competent under the law 10 summon the jurors
TeQui eG 10 nj The panel. In the contingency OF
adopting the mode first meuti-ned In Section
226, Tie Sheriff is authorized by tie code Itself
10 summon lie Jurors banned In the liSt prepared
and certified aud placed 10 his hands; but not so
II tile court adopts The alternative mode provided
by said section, because 1t Is therein declared
thai tie court may, by order eut red in It's mIu-
utes, direct lie Sheriff OF elisOT chosen by the
court 10 summon, etc. Here II is seen thai the
Sheriff, If lie be directed 10 summon, etc, derives
his authority 10 perform such services by appoint
ment OF the court by and through It's order
much so as the chosen eisOr derives bis
authority from the court by and through its
order. So that the necessity OF an affidavit as a
basis OF the order appointing an eiSOT and dill ect
ing him TO summon the good and lawful men re.
QulTed 10 complete the panel. Is not found In The
section OF the code here referred to, nor else
where IN such code nor iu any other code. Such
an affidavit, showing that he Sheriff aud COTO-
ner were disqualified, could seiye no useful pur-
pose and It's recital as the foundation OF the or
der would be wholly idle and irrelevant.
HE special and independent provision OF Sec
ton 226, requiring the court by its order ell
tered IN It's minutes. to appoint either the Sheriff
OF an ellison chosen by the court, aud requiring
by the order itself, the one appointed aud
named In the order 10 forthwith summon the
needed number OF good and lawful mn, to Oh
and complete the panel. is especially significant.
The court has the authority TO appoint and
direct either the Sheriff o. chosen elisOr 10 sum
mon the needed number TO complete the panel.
Whichever or the TWO The Court appoints aud
directs Is, by tile order invested vi authority
authority, not from the statutes which apply
generally Investing the Sheriff with authority TO
serve and execute process, but from the court
acting independently by authority conferred by
the last alternative provision Of Section 226
Is already observed the Code of Ciyii Proce-
dure contains within itself a complete system
for the formation and Impeachment of grand
lurles, and II should be regai ded as conclusive
on the subject. II anything beyond the express
provisions OF this code IN relation TO the fOrma-
ton aud lmpaneng Of jprles were necessary TO
make ii exclusive OF the Political Code, to which
the Supieme Court has referred IN support of its
view OF the question, II Is found In Section Of
the civil Procedure Code, which declares that
''this code establishes the law Of HE State re-
speeding The subjects TO which II relates."p
THE POLITICAL CODE.
The Political Code has nothing In 1t I'm relation
TO The formation and Impeachment OF juries. IL
does, however, dehue the duties OF he Sheriff
and Coroner and provides IN what cases The
Coroner shall perform the dulles appertaining
10 The Sheriff; and II provides further tn ease OF
the disqualification OF both Sheriff and Coroner
IN particularly specified case, TO perform the
duties properly belonging 10 the Sheriff. and the
fact OF such disqualification Is made 10 appear
by afndaVit, that theTeupOn The court NAV ap-
point an elis0T 10 perform such duties THIS pro-
vision OF Tie Political Code, the Supreme Court
hold must be read in parl mate1a with The pat
ticular part OF Section 226 Of the Cod OF CvHl
Procedure, under which Judge Wallace made
the order appointing Henry Scott eisor aud
directing him 10 summon jurors. etc Whatever
application The provision Of the Political Code
may have IN general 10 eases which may arise
under portions OF the code other than the last
alternative part OF Section 22G, il Is not import
aut now 10 consider That il has no application
10 the part Of Section 226 here referred TO seems
10 me 10 be too plain 10 admit OF any DOUBT.
HE Supreme Court hold That the official cog
nonen OF the temporary officer, Henry Scott
Is not warranted by The legal definition Of The
name or word eiisor, because not just lfed By an
atndayit showing 10 the satisfaction Of the court
OF Ibe Judge thereof the disqualification OF the
Sheriff 10 perform the service required. IL
seems TO me That this Is refining TO a degree be-
yond the rules OF Just criticism. The name slsor
IS given 10 the temporary officer whose duty In
the particular instance Is 10 perform a service
which IN It's general character Is of the nature OF
duties which usually devOlve upon the Sheriff
aud which he, The elis0T, by authority Of his APP
polnlment, performs Instead Of the Sheriff Be
this as II may. under The most rigid rules of
criticism The name elisOT II a msnOmer, is well
defined in Section 22G by The duty imposed upon