The herald., 1895-12-06

/ 10 properly, theh very otner rt1ui.
| ment in the section must be followed,
and departure thcrefrom rs equally
| fatal. That section provides the judges
shalt take such persons only as are not
exempt from serving on luries, VINO are
not infirm, of good character, etc. NOW,
by this section, tho judges are required
to list persons not exempt from Jury
duty. Who are exempt? All iuuicial,
, civil or military officers OF the / nlted
States or this state. attorneys at law,
ministers of the gospel, school trachc"s'
physicians, druggists, keepers OF poor
houses. hospitals and charitable institu-
tions, saloons, express agents. mail car
riers, mem bers of fire departments. ma
tional guard and many other classes; all
these, the statute says. are EXEMPT. out
such exemption is personal privilege
and not a disqualification, as the very
nature of the cases suggest and indeeo
our statute (section 1913 penal codel en-
pressly provides, IAN exemption from
service ON Jury is not cause OF chal-
leng-, but the privilege OF the person ex-
empted"; so that if the defendants con-
.ention is correct the listing OF any oil
these exempt classes would lnVailuate
the Jury, " hen the statute expressly says
il is not LITIGATION. Again, the
statute invoked by the defendant APP
plcies alike to petit Jurors, and what
lawyer has ever sought to question Jurors
as to property qualifications the year be-
fora they are listed?
sAIf we give section POS .he mean1ng con-
ten led for, then it is in conflict with sec
ton 1913 and section 1915, this should be
avoided il possible, and the three or tour
sections in reference to Jurors should be
construed IN paTi materia. This maSes
each section effective as to Its particular
object; the end is reached ana no vlo-
lence done to construction. section 40
is the guide fo- those whose duty 1t Is TO
,t-, t,-tc htit n
competency of juror. Section Is pre-
scribes the qualification of the Jurors ana
that as to property plainly declares MN
competent il his name was on the last
assessment roll, so that assuming (whlcn
is not conceded) that on motion to set
aside you have the right to challenge,
garnd Juror for lack of property qualill-
cation, / am of the opinion that the sec.
ton prescribing the qualifications OF
Jurors is 1875 and that if Il juror is on the
last assessment roll prior to the time
when he is drawn and efnpaneled 1t is all
that is required; that section 2Uo IS d.
rectory to the officers VINO have duties to
perform in connection with obtaining
Jurors. Ihe latter declares what the otfl-
GERS, whose duty it is to make selection OF
names and persons shall do, the formsr
section has directly to do with the person
and personal qualification OF Jurors,
But [ am OF the opinion that defend
ant tdU1lJb anu i"A 10 va 49,
ground that he was not assessed on the
last assent roll Of the county. Section
800 and 500 declare the causes OF chal-
lenge both to the arary or panel ana TO
individual grand Jurors.
+. Section S95 says: "A challenge to the
panel may be interposed for one or more
of the following reasons:
"Fir.t-That the requisite number OF
ballots was not drawn from the jury box.
'Second-That notice Of the drawing
OF the grand jury was not given.
"Third-That the drawing was not bad
in the presence of the officers designated
by law"
Section s96 provides that challenge to
an individual grand Juror may be inter-
posed for one or more OF the following
causes only:
"First-rhat he is a minor
"Second-That he Is an alien.
Third That he is insane.
"Fourth-That he IS a prosecutor upon
a charge against the defendant.
"Fifth-A witness, etc.
'Sixth-A ctual bias"
The Iegi stature has seen tit to limit the
causes OF challenge to grand jurors, aad
that no challenge can be exercised for
causes aside from those named in the
statute has been decided so many times
by our supreme court tina. citation IS not
necessary.
So also the causes for setting aside an
Indictment are enumerated in section
gy2. Penal Cod. and like causes for chal-
leng, none other Than those expressed
in the statute can be urged and " lat are
thew?
First, when the indictment is not
found indor.ed and presented as pre-
scribed in the code; second. when the
found upon the Indictment; third,
when person Is permitted to be pres
ent during the session OF the grand jury
when the indictment is under considera
tion, except a. provided; fourth and last,
on any ground snet would be cause Tor
challenge either to the panel or an in
dividual grand juror.
So that the ground alleged by defend
ant for setting aside the indictment is
not one named in the statute and there.
fore cannot ne awaited of under this mo-
ton and again, Tor this additiuanl rea-
son, the motion OF defendant must he de-
MED.
The defendant has invoked the Bruner
case reported in %, Cal. r., page -. In
that cuse Judge Wallace OF San francis
CO, OF his own motion, and while the
sherilf was not disqualified, appointed an
eliSor TO serve q special vcnlre to COM
piete his grand jury. and writ of pro-
hibition WAS applied for to the supreme
court to prevent the Judge from trying
and the court held that the court acted
without warrant of law in sammoninp
the taiesman on special vsnire, and that
the grand Jury was an illegal body and
the Indictment void. But observe that
the point WAS reached ov the writ OF pro-
hibiuon. writ never Issued except in
exceptional and extraordinary cases, on
Is issued in cases where there IS not an
adequate remedy at law, and it was the
decision of the court that the matter
could be reached only by prohi bItion.
Tne argument OF the decision being that,
since a Judge had wholly departed from
the forms OF law for which the statute
furnished no remedy, and that the effect
of such action was SO far reaching AID
dangerous to the reputation, lives and
Liberties OF the people, il would find Il
remedy III the writ OF prohibition: but
how stands the case at bar? Here the
contention is that party regularly drawn,
summoned and mpaneled as a grand
Juror had not the property qualifica-
ton mentioned in seotionS2o5, when the
judges placed his name or the jury list;
as il, every time, by some oversight,
there is, It departure from the forms pre-
scribed in obtaining iuries, the eXtraor-
binary writ of prohibition must be ap-
pealed to, to preserve the inalienabie
rights OF the citizen. The statute is in
tended TO furnish every remedy in q mat
ter like the present. 1t is not eXtraordi-
nary. 1t is simply one Of the qualifications
Of a juror. This grand Jury was lrsted,
drawn, and empaneled, according to the
forms prescribed by our statute. 1t il
com posed Of nineteen as good and worthy
citizens as can De found III the county,
and ii by chnace some one lacks III some