The record-union., 1896-05-24
ACCUSATIONS SET ASIDE.
Important Decision by Judge HinkSon
Yesterday.
The Supervisors Gould Not be Com
PEELED to Give Evidence Against
Themselves.

A very important decision was rem
dered yesterday by Judge Hinkson, va
eating and setting aside the accusa-
tions filed by the Grand Jury against
the members of the Board of super
visors. It is long and exhaustive and
orders them resubmitted to the next
Grand Jury. 1t is as follows
In the Superior Court Of the county or
! Sacramento, State of California-The
People Of the State Of California vs..
John F. brennan, J. w. Todd, ]. M. Nor
rison, William Curtis and Thomas Jen-
kins.
| The Grand Jury of the county OF
Sacramento presented and filed in TINS
court accusations against the defend
ants for violations of their official du-
ties as Supervisors of said county
| The defendants moved the court to
set aside and dismiss each Of the SAID
accusations upon the grounds follow
| ing, to wit:
That said accusations were not found
indorsed or presented as provided by
| the Penal Code of this State.
II.
| That when the charges against said
defendants and each of them, which
| forms the subject of the accusations,
was being examined and considered by
the Grand Jury which found and pre-
| sented the accusations, the said Grand
Jury summoned each of said defend
ants before that body as witnesses
against themselves, and compelled them
to testify upon said charges, and COM
PEELED them to furnish testimony
against themselves, and to testify in
said matters then being considered by
said Grand Jury, after which, upon said
testimony so furnished and given by
said defendants, these accusations were
found, filed and presented in violation of
Section 13, Article L., of the Constitution
Of the State of California, and also in
violation Of Amendment V. Of the Con-
stitution of the United States.
! The several motions were heard to-
gether, and each of the defendants were
sworn and examined as witnesses in
support thereof, and each testified that
he was subpenaed to appear before the
Grand Jury as a witness, and that he
was examined and testified as to the
subject matters upon which the
accusations were based that he was not
advised that he need not testify unless
he chose to do so, and that he gave his
testimony in response to questions
asked him because he thought it was
his duty to do so.
When the matters were argued orally
by counsel for the respective parties
and submitted with leave to the Dis
trict Attorney to file brief in opposi-
! tn ha a q
stated that he did not care to file any
brief but would submit the matters on
his brief filed in the matter of the mo-
ton to set aside the indictments against
l. j. Simmons ct ais, recently decided
| by this court, and which involved some
of the same questions that are here in
volved.
The first point is not we'll taken be-
cause the accusations are in form,
substantially, If not in strict conform
ity with the law, and they were in
| dorsed and presented as provided by
the Penal Code of this State.
AS to the second point that the accu-
sations should be set aside because the
! defendants were subpenaed and re-
quired to testify before the Grand Jury
as to the facts upon which the accusa-
!
somewhat from the question that was
| involved in the case Of the indictments
against I. ]. Simmons ct al, as I held
| in that case the law is well settled
that an indictment found against a
person by a Grand Jury, which had
! subpenaed him before that body and
had him sworn and examined as to the
subject matters upon which the indict-
! o1a or1y
peared that he had been informed of his
right to refuse to answer any questions,
and that his testimony was given freely
and voluntarily and without any re-
straint whatever, must on motion Of the
defendant, be set aside.
| 1t is contended, however, by the Dis
trict Attorney that an accusation is in
the nature of a civil proceeding, and
that, therefore, the rule that applies in
! cases of indictments found as above
stated does not apply here, and he con-
tends that such rule would tend to OBJ
struct the administration of justice.
| In determining questions of law
il is not the province of the court to
legislate into its decisions any provi
sions to remedy any defect that may
| exist in the law, but its plain duty is to
declare the law as it finds it, and it is
| the special duty Of the nisi prius courts
| in all cases to adopt as law the rule
| laid down and presented by the Su
preme Court and in this matter the
Supreme Court of this State has re-
| lieved me of any responsibility except
! to ADOPT the law as it has so very
| clearly and unquestionably declared it..
| 1t will be borne in mind that as stated
| in nv opinion rendered in the matter Of
| the Indictment against Simmons ct al,
that Grand Juries are component parts
of the court, which has control and ju-
risdiction over them, and that the same
rules of evidence applies to Grand Ju-
ries that controls the courts, and it
necessarily follows that if a defendant
| cannot be required to give testimony
against himself on the trial of an accu-
sation presented against him by the
| Grand Jury he cannot be required to
give testimony before the Grand Jury to
enable that body to find and present an
accusation against him.
| In the case of Thurston VS.. Clark, 107
Cal. 2S5 an accusation was filed in the
| Superior Court of Glenn County
| against the defendant to remove him
from the office of Sheriff of that county
| for alleged malfeasance in office, and
on the trial the defendant was required
to give testimony against himself, and
at page 2SS of that decision the Supreme
Court says:
Section 13 of Article I. of our Consti-
| tuition, following a like provision in
| Amendment V. of the Constitution of
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