217 P. 573 | Cal. Ct. App. | 1923
On the seventeenth day of August, 1921, the petitioner was indicted by the grand jury of Los Angeles County for the crime of perjury. To this indictment a demurrer was interposed on the ground that it did not state facts sufficient to constitute a public offense, and the superior court ordered the same sustained, in making of which ruling the following language was used: "Demurrer to indictment sustained and case ordered resubmitted to the grand jury." The district attorney thereupon resubmitted the case to the same grand jury, and a second indictment was returned against the petitioner also charging him with perjury. It is not denied that this charge was based upon the same subject matter and facts as was the first. The petitioner alleges on information and belief that no witnesses were examined or evidence introduced before the grand jury in the time intervening between the returning by it of the first and second indictments.
In due time the petitioner moved the superior court to set aside the second indictment on the ground that it was not found, indorsed, and presented as prescribed in the Penal Code of California, and particularly section 995 thereof; and that the superior court had no jurisdiction of the subject matter of the action. This motion was denied, the defendant pleaded not guilty, and the case set for trial, and *318 upon application duly made an alternative writ of prohibition was issued by this court.
The petitioner insists that the grand jury finding the second indictment had no jurisdiction, because he asserts the order directing the resubmission of the cause does not comply with section
[1] As to petitioner's contention that a grand jury having found one indictment is disqualified to return a second upon the same facts, we have no doubt. This is a matter entirely within the authority of the legislature to regulate. It is one of procedure and hence does not infringe any substantial right of the defendant. (People v. Schmidt,
Section
In other cases the supreme court has emphasized its construction of section
Counsel for the people argue that the language used in this instance is sufficiently definite in directing that the case be resubmitted to the grand jury; that this language means the same grand jury. Petitioner responds as far as the record shows there may have been no grand jury in session when this order was made. We think this cannot be maintained, for both indictments were returned by the same grand jury, the second being subsequent to the making of the order in question. It follows that when the order was made the grand jury which returned the first indictment had not been discharged and was in existence.
[2] But we think the court's action must be sustained upon another ground. It has been held that the court may delegate the choice of any one of the modes of prosecution provided in section
The petition is denied.
Finlayson, P. J., and Works, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 26, 1923.