The record-union., 1897-06-27


fees for services rendered or to be rem
dered in his office, or for refusing or
neglecting to perform the official du-
ties pertaining to his office the pen
atty for which being the deprivation
of the accused of his office and a judg-
ment for $500 in favor of the informer
and such costs as are allowed in civil
cases. The defendant was called by
| the prosecution as a witness, and
against his objection and protest the
court required him to testify. The SUI
preme Court held that this action upon
the part of the trial court was in VIOLA
ton of Section 13 of Article l. of the
Constitutionu, supra, and used the fol-
| lowing language: Removal from office,
under the summary proceeding provid-
ed for by Section 772 of the Penal Code,
is a punishment for wrongdoing by
the class of officers designated in chap
/ ter of title of part , of such code
There are two methods of prosecution
| for willful or corrupt misconduct in Of
| flee provided by chapter . One is by
accusation in writing presented by
| the Grand Jury stating the offense in or
/ dinary and concise Language under which
the accused is entitled to, and must be
| tried by jury, and upon conviction the
| judgment is that the defendant be re-
moved from office The other method
is the summary method provided by
Section ~ of said Penal Code In all
its essentials of cause and effect, the
latter is a criminal proceeding equal
with the former The proceeding is a
nondescript, but resembling somewhat
a qui tam action. But whatever it's
garb, it is in body and spirit in it's
aim and object a process for the pun
! ishment of crime. -
1t is contended that, inasmuch as
| brennan and Jenkins were not sub
! penaed to appear before the Grand
Jury by regularly issued process and
appeared before that body upon a
mere invitation from it, and were not
sworn to give testimony, their cases do
not come within the constitutional pro-
vision under consideration. l am con-
| strained to differ from that view. They
had right and reason to believe that
! that body, inquisitorial in it's nature,
! had under investigation matters ap-
| pertaining to the official duties of these
defendants. Having been told by a
Deputy Sheriff that they were wanted
before the Grand Jury, they had a
| right and reason to belive that that
body desired some information relative
| to their official conduct When they
t reached the presence of the Grand
Jury they We're exactly in the same po-
s1tIon as those who We're regularly sub
penaed to be there. When they were
| questioned in reference to the matter
| upon which are based the accusations
| against them, they We're exactly in the
! same position as those who were
| brought there by compulsory process
| VINO can say but that the very infor-
nation which that body obtained from
questioning these defendants upon the
| occasion OF their appearance before it
was the basis of the accusations If
they were called there for the purpose
| or being questioned in relation to the
subject matter of the accusa tions
against them, whether by subpoena or
otherwise, it was clearly in violation
of their constitutional rights If they
were not called there for that purpose.
put incidentally questioned upon the
subject, there being no previous in
tention or disposition upon the part of
the Grand Jury to investigate the spe-
cific charge of which they were ac-
cused, they We're placed in the embar-
| RAISING position of either refusing to
answer the questions propounded to
them, and thus leaving an unfavora BILE
inference to be drawn by the Grand
Jury, or giving information upon which
that body might feel that it could not
hesitate to base these accusations.
In the case of Boyd VS.. the United
States GIG U. S. Reports. D. 616).
which exhaustively treats the provis-
ion in the Federal Constitution bearing
upon the subject under consideration.
1t is held that it is not necessary that
a person be sworn in order that he
may be witness against himself. If
he, by any means, is forced or induced
to present himself before any lawfully
constituted tribunal in which is in
vested the power to examine. in
quire into or try cases or proceedings.
whether of civil or criminal nature. in
which are sought testimony or state
ments which might tend to subject a
witness to a criminal prosecution
whether he is sworn or not. such
course of conduct invades his consti-
tut1onal right not to be a witness
against himself.
1t was contended by the District At
torney that there is no provision in the
Penal Code authorizing motion to set
aside an Indictment or an accusation
upon the ground that an accused per-
son has been forced to become a wit
ness against himself. Section 995 of
the Penal Code provides that IAN in
dlctment or information must be set
aside by the court in which the de-
Iehoant IS arraigned, upon his motion,
IN either of the following cases: If if
be an indictment, first, where it is not
found indorsed and presented as pre-
scribed in this code" The fol
lowing language is to be found in
Section 9l9, supra: d" * The
Grand Jury can receive none but legal
evidence and the best evidence in de-
gree to the exclusion of hearsay or seq
ondary evidence"
1t seems to me that where an ;nd;o+
ment is based partly upon evidence ex-
torted from an accused person aeainc+
ms consent, 1t is an indictment found
IN violation of the section quoted
When evidence is given by a person
against himself before a Grand Iurv
which constitutes part of the record
upon which the Indictment is based If
is clearly not legal evidence within tba
meaning of this section But it is said
that there is absolutely no provision
Whatever in the Penal Code for a mo-
ton to dismiss an accusation and tba+
therefore such a motion cannot under
any circumstances be entertained. 1t
is true that there is no procedure pre-
I nil A1 h. n