*1 October 29, 15377. F. In Bank. No. [S. 1935.] al., Petitioners, BURON THE FITTS et SUPERIOR COUNTY, Respondent; COURT LOS OF ANGELES October 29, A. No. 14976. In Bank. [L. 1935.] Petitioners, v. GEORGE GREGORY THE SUPE al., G. et Respond COUNTY, RIOR OF ANGELES COURT LOS ent. *3 Scott, Tuller, Joseph Swaffield, Jerry Roland G. K.
Walter Judson, Byron Harold Giesler, Gilchrist, C. Hanna Jack Petitioners. for P. Bledsoe IT. County Counsel, S. Mattoon, 'Prichard, Y. 0. W.
Everett Clyde Counsel, Special County Shoemaker, C. Deputy Respondent. Counsel, for .
WASTE, prohibition, C. J Petitioners seek writs of respondent stay Superior Court, directed to the further proceedings upon therein in based certain connection with or presented by indictments found and them the jury of Angeles Los County during year 1934. Subse- quent to the return entry of said prior indictments and pleas thereto, petitioners filed in respondent certain by motions sought which it quash aside and set the indictments. hearings upon At the these several motions an abundance of by petitioners evidence was adduced an support effort to their contentions that the indictments were void and of by no effect because found and returned invalid unconstitutionally organized grand jury. The people opposed quagh the motions to and offered evidence many respects conflicted in material with that intro- petitioners. duced Thereafter the several motions respondent were denied court. These proceedings in many followed. Because of issues common to proceedings, both we have purposes consolidated them for the opinion. of this In passing points these common we shall presented consider full record thereon each ceeding. Any peculiar issues proceedings to either of said shall, course, separate receive por- consideration respective tions of the records particularly applicable thereto. respective petitions grounds contain the same as a basis prohibition upon for a writ of which, respondent quash moved to and set aside the indictments invalidity. because of their asserted Considered individually, collectively, these attacks indictments, though many varied, objective, namely, have one main the estab- they lishment the contention that wére found and returned body persons styled grand jury a that was neither in valid, constitutional law nor fact point generally shall petitioners’ At this we state several do with improper contentions the asserted impanel- *4 jury. support grand position ment of the of their that the grand jury Angeles County of Los had no valid existence against petitioners indictments returned it and that the are grand jury urged (a) the list void, year it is that for that compliance prepared provisions in substantial with not the and 206 of the Code of 204d Civil Procedure in of sections that majority the order establishing not the act of a the same was ap- of judges the names respondent court and that the pended among wards apportioned the several thereto were not judges townships required (b) and en- by law; that the grand jury duty trusted were impaneling the of prejudiced biased who type person and not only as to excused, should grand jury be selected for service or regardless questions legal qualification, disqualification, exemption excuse, prejudiced or biased and but were also requirement grand jury se- that a the law im- lot; (c) judges presided lected and that the who over prejudiced against paneled were biased and petitioners, them; (d) grand some of that or impaneled im- open court, court, but was or judges part, by acting in chambers paneled, for the most the. duty court; (e) judges out entrusted with invited, received impaneling and considered private, the sanction information out of and without persons whose touching upon fitness of the oath, prospective box as names from the been drawn foregoing the (f) result of the jurors; and that as a petitioners equal protection were denied of the laws process due law state con- violation of the and federal stitutions.
Preliminarily challenge should no is made be noted that panel members of the individual or to challenge permitted Indeed, is not since such a 995 of Penal Code. mention section We amendment of any expressly disclaim contention passing collectively, individually or the members were qualifications essential the officeor lacking were in the petitioners, of them. prejudiced toward biased or solely of their selection at method attack launched therefore direct our attention to the con- impanelment. We touching contentions, Other outlined. tentions above than rather functioning, appearance of an unau- the asserted do with body alleged and with person certain before that thorized part special presence its prejudicial misconduct it, receive considera- appointed to assist will regularly counsel opinion. later tion
519 At the any threshold of discussion of several at- selecting, drawing tacks adopted for the methods indict- that returned against ments petitioners, pre- with the we are confronted liminary, yet pro- fundamental, do with the issue to priety remedy prohibition of under the circumstances presented. petitioners here agree with the We cannot prohibition is to available them their assault grand jury. formation of the There can no dissent from be proposition respondent Superior Court, acting that the presented the motions to it jurisdiction causes pending against therein petitioners, had determine, correctly erroneously, or on before the evidence it, properly selected, whether had been drawn impaneled. jurisdiction respondent If the court had determine these several an matters, erroneous determination thereof, if conceded, juris- even would not serve to oust of jurisdiction diction or constitute excess of so as to warrant of prohibition issuance writ restrain it from premises. ceeding further in the question presented may
The sole or which is con be proceeding upon sidered in a a writ is one of jurisdiction. In language of section 1102 of the Code Procedure, Civil pro writ the office arrest “the ceedings tribunal, any corporation, person, or board exer judicial cising functions, proceedings without, when such are jurisdiction tribunal, corporation, or in excess person’’. state, generally board or In this speaking, the rule strictly has adhered to that neither prohibition, nor object writ, try question other sole of which is to jurisdiction, purposes can be made to subserve writ of a scope of error extended its corrective or to the review of by any “tribunal, errors of law committed corporation, board person’’, proceeding “tribunal, corpora or which such person’’, tion, has under the board law. This (Pacific in numerous doctrine has been declared decisions. Superior Court, 217 517, & Co. v. Cal. 521 L. States Sav. [19 ; & (2d) Superior United Sec. Bank Trust Co. Pac. v. 977] 184]; 167, Superior 174 v. Court, 205 Cal. Pac. Holland [270 523, (2d) ; 525 App. Hatch, Pac. In Court, 121 Cal. re [9 531] 398]; Superior 335 Pac. Bor 333, 334, ello v. App. 9 Cal. [99 215, 404].) 218 App. Pac. Court, 8 Cal. [96 (cid:127) circum- that the concluding, are of the view so we readily distin- proceedings are giving stances rise to these Court, Superior guishable in Bruner those involved 341], Cal. in that petitioners, relied on peti- indictments returned jurisdiction upon even respondent court, tioners conferred though assumed, deciding, it be without *6 impaneled in the returned that the same was selected alleged by petitioners. be understood manner We are not to methods and condoning approving or enumerated as the above impanelment alleged practices to have been resorted to the jury. practices, assum- grand It view that such is our jurisdiction re- they ing occurred, not affect the would petitioners try thereon. spondent court to the Court, supra, which Superior In Bruner v. restraining rely, petitioner procured a writ of him Superior proceeding further Court from purported alleged have been returned certain indictments legal by grand men as body of that had no existence a a case a divided three of decision that was The justices dissenting. are inclined to extend the rule We not peculiar there beyond the facts to it was of that case ' presented Bruner factual opinion, In case a applied. our distinguishable from here involved. It was the one situation duty charged of admitted that there complete disregard grand had, in contrary, appointed an elisor to provisions statutory to the jurors, show- in the absence of a certain of summon duty. disqualified perform that was sheriff ing that the accepted persons whom the court summoned nine elisor The of that jurors. admitted facts Under the as and seated elisor appointment the so-called may that the said case, it in excess, of the of the court. without was appointed An and until have been unless should not elisor appear. In sheriff was made to disqualification by majority in that case a effect, therefore held it was persons summoned the elisor were nine justices consequently grand jury and that intruders mere any indictment authority, returned without semblance jurisdiction upon confer failed to nullity a it was petitioner. try Court Superior
521 it was not A reading of case indicates the Bruner in the upon any irregularity theory decided of error jury, but ceedings impanelment of the leading to the an essen- total absence of that it was based the admitted dis- sheriff was jurisdictional (a finding that tial fact requisite organization valid qualified) of a there Had the court through instrumentality an elisor. charged duty found impaneling the with the of facts disqualified, upon sheriff a consideration conclusion, tending actually support but insufficient to juris- an excess of we are satisfied there not have been prohibition. of writ of warranting diction the issuance a merely event, have been error the latter there would pre- procedure leading impanelment of the prohibition. cluding issuance of a writ distinguished jurisdic irregularities, Mere occurring defects, tional in the formation a will justify declaring nullity. not a court an indictment a (People App. 176, Murphy, 51].) Cal. true body having distinction lies between the acts of a no semblance authority act, body which, strictly and of though to' regular organization, is, nevertheless, acting in its authority. (In Gannon, *7 color of re 69 Pac. Cal. [11 240]; People Southwell, 141, 150; People v. 46 Cal. v. Leon ard, 335; ; Hatch, In re supra, Cal. Pac. 617] 128.) People Petrea, 92 N. Y. opinion,
In our the Bruner case comes within the present case category, former while the comes within the present, Disregarding for the all conflicts in the evi- latter. many conceding upon petitioners’ assaults the in- dence and jury grand dictments, cannot be said that the that returned it against petitioners had no of au- semblance the indictments right. color of lawful In other thority, without or acted words, petitioners’ accepting contentions at value, their face held, cited, it must under authorities last above that jury grand jury. grand was at least a de That the facto grand jury de proceedings and acts of a are valid and facto by credit, Quoting the cited full is settled cases. entitled to Gannon, supra, find it re we there stated that briefly from In authority grand to maintain the of a “it is sufficient therefore authority. in- under color lawful An has acted jury it that as one regular as grand dictment found a de facto ’’ jure grand jury. found a de the attacks distinguished ease, Bruner “Here, from the any essential the absence of by petitioners, made fail show On jury. grand jurisdictional organization fact in the several contrary, and even if it be conceded actually complaint occurred matters of which is made ir- but a series contended, they constitute manner to an to amount regularities insufficient in character or errors jurisdiction impanelment excess jurisdic- deprive respondent court and insufficient to the indictments returned try petitioners on tion to them. petitioners’
In view assaults said, of what has alleged employed in select- the methods to have been ing, drawing if sub- even writ of stantiated, would not warrant the issuance of a hibition circumstances here involved. We do not under the by petitioners sup- many discuss the cases cited propose to many port contrary conclusion. While of them involved of a involved, to those somewhat similar character here issues they presented varying factual situations. were Unrep. Court, 6 Superior Cal. nothing
There is Terrill v. In that herein. 38], opposed our conclusion 398 [60 whereupon allowed the indictment was case a demurrer to resubmitting matter to the same an order court made original indictment. found his to restrain trial applying for a writ 1008 of petitioner relied section indictment, the second if provided that a demurrer be which then Penal Code prosecution, is a bar unless the to another allowed jury. submitted case to be to another “directs the ” correctly case that the order al It held . . . prosecution to another lowing the demurrer was a bar words, same In other same petitioner. This to reindict clearly without brought the case within rule jurisdictional defect However, was there made. ease, reference to which Bruner *8 case, in the Terrill note that the decision significant to it is present applied The in the case. rule recognizes supra, ‘1 ease This is not a where declares, part: in opinion acting under the semblance impaneled, irregularly affording procedure right authority, and lawful in the but enjoyed every had the advantage have to the accused he would to a presented an accusation proceedings regular, has ir is it an try him. . . . Nor to act, regular legally to and who do assemblage qualified men act, proper control of the court. Here jurors authority had to in no act at all the matter. qualified were act, not was a matter of record. and that fact '”. placed upon . . The decision in that ease is the correct principle indictment, body of men that found the power statute, under the no act. provisions of the present That is not the ease. touching
Nor do we think the contentions grand jury, functioning rather than presently even if have merit, conceded to warrant the prohibition. In issuance of a writ of this connection it is urged determining that while the was session charges against petitioners, whether should be filed or some them, permitted ineligible person an unauthorized and appear before it and make certain re unsworn statements garding inquiry, in violation of section 925 of the Penal present distinguishable Code. The case is from the ease Superior Court, App. (2d) Husband v. 128 Cal. 764], by petitioners. relied on ease the cited an unauthor person ized present grand jury during was before the taking of evidence which resulted indictment there present assailed. The record in the case indicates that the engaged investigation actual any attorney the officeof the district did evi not receive engage presence dence or deliberations was, person asserted but unauthorized at time of which solely complaint made, preliminary concerned determining appointment special matter of whether the necessary. However, advisable aside counsel present factual between distinction that exists case, supra, grave case and the Husband we have doubts permits propriety case holding to the compel a writ of issuance of mandate dismissal of ap ground person indictment that an unauthorized 925, in violation of section peared before the hearings charges leading in on supra, during hearing case, of a in the Husband the denial dictment. Since *9 524 applica us in the question
we have had before this identical 14921, Court, Haight tion S. F. Kemp Superior v. and to of mandate application wherein we an for writ denied alleged compel because of the the dismissal of an indictment improper persons appearance before of unauthorized grand jury. We were then still opinion, which we maintain, dangerous that it would be a precedent, under such circumstances, mandate, to allow preroga a writ of or other writ, every tive inquire to be to the'regularity used into indictment returned reasoning This is with holding Delhantie, line of this People court in 461, 1066], Cal. “The wherein it is declared: jurisdiction superior dependent upon of the court was not compliance provisions with the of section 925 of Penal Code. It obtained of the cause for purposes all presentation by reason of of the indict ment charging defendant with alleged the crime murder County.” have been in Marin committed urged special up summing It is next counsel in- evidence the return for the before of the dictments petitioners, them, or some of resorted to inflammatory arguments and demanded that indictments returned. His conduct constituting condemned as illegal that served influence to invalidate the indictments. part special counsel, Misconduct on the even if conceded present exist, jurisdictional would not anything of a char- warranting acter prohibition. the issuance of a writ of At most, irregularity constitute but an ceedings leading to the return of the indictments and would not invalidate the same. ap- the preceding point
What has been said under plies equally judge presided to the contention who participated certain over the “activities” preliminary investigations, employment to do with investigators, publishing of an asserted vicious attacking petitioner Fitts, scurrilous document which is have handed the members of said to too mention. and other matters numerous to adequately disposes foregoing principal The conten- petitioners. specifically Other matters herein tions prohibi- call for the issuance of a referred to do not writ of tion. alternative respective applications and the are denied is, discharged. are,
writs heretofore issued each Shenk, Langdon, J., concurred. J., Thompson, J., CURTIS, Concurring. judgment J., I concur greatest pro satisfied, reluctance. I am view appellate of our this and our visions codes the decisions of empanelment courts relative the selection and juries, that which no different could be reached from result *10 signed majority is this court. opinion by set forth in of the apparent It is will from the authorities cited upon the indict not lie to restrain the trial the grand jury, thereof were ments found the members as the regularly summoned into after their names had been they drawn the jury box, where been de posited pursuance governing law the the selection returning jurors. (Code to Proc., secs. 204 Civ. 211.) lawfully therefore, was drawn and all mem eligible bers thereof act, provided they quali were met to the fixed fications law. employed by
The method the court in trial the selection empanelment in- the which found the against petitioners, dictments unprece- was so unusual and fraught gravest dangers dented and so with that it is a matter regret me legal with that there is not to found some authority whereby might jury the courts declare all acts of a absolutely void, including so selected the indictments petitioners. dispute the There no as to manner which empaneled. said was response selected to order the trial court directing to be drawn year 1934, twenty-eight for prospective jurors appeared the place at the court time and fixed the court for the empanelment jurors of said prospective These were open questions sworn in court to qualifica- answer as to their jurors, tions whereupon to act as such the court declared a judge repaired recess and the trial his to chambers with reporter interrogated prospective court where juror he each hearing closed and without person behind doors except reporter juror whatever, himself and questions of judge examination. The trial related not only juror, they qualifications but went far private
afield juror into the life of the under examination and qualifications into entirely foreign matters as a his to act juror. connections, He was asked his as to his business status, political affiliations, financial his his fraternal connec- being and, religious tions instances, some beliefs. After his juror, exception so who had examined each four return to during examination, been excused was told to day twenty-four of court On one week hence. fixed panel After who had returned to court. not excused calling desired judge roll the trial announced that he again he had to interview all of them in his chambers and that during him presiding judge court sit with asked the Whereupon judge, presiding examination. the trial said judge reporter repaired the chambers and the court panel separately judge where member of the the trial each again as judge’s there examined into the chambers and called extensively yet upon minutely before, although previous ex- his general gone were into matters as same also held behind closed amination. This examination present juror under persons doors, only beside and the presiding judge and the judge, the were the trial examination of this examination reporter. the conclusion At bench and called his judge resumed seat trial jurors them prospective and ordered sixteen of the names of *11 day. the time that At same to court one week from to return had not panel names those of the whose he announced that No Eight excused. were thus been called were excused. why judge trial given at the the reason whatever was time said persons excused service said judge trial made an order session of court the At this same from, jurors the drawing additional for the of twelve required legal grand for complete a jury box' to the number complied with and the list of jury nineteen. This order was drawn was delivered to the sheriff names were persons whose persons the together with an order that so served service, for day. day ap- week from that On the appear in court one panel those the pointed judge, after on new the trial qualifications, questions regarding their an- answer sworn to judge court to presiding of said nounced that he had asked the during empaneling jury, and him the further sit with time, panel, new member one at a directed each that ‘‘ judge presiding my- where the and come into his chambers you in cham- question self will matter and discuss Whereupon judge recess of bers”. the trial announced a judge presiding trial and judge, and the repaired judge, trial where reporter to the chambers of the panel in judges the two each member of new examined substantially concerning mat- manner the same the same and original panel had ters as the members been examined. judge this the trial assumed his At the close of examination persons bench seat and announced sixteen original panel had been excused. He two then directed put jury clerk into box names seven members panel names. the new and withdraw therefrom five done, and an order This was made that the fourteen persons original panel panel from the five from new and year county constitute the of said 1934. for criticizing selecting the method of and empaneling the employed jury judge, the trial I do not to be wish put position impugning the motives questioning or integrity of presiding They either the judge. trial may been, I were, have and believe actuated in- best object purest motives, tentions and and their pursuing sole employed by the method them was to impartial secure an body jury fearless of men aas who would meet and judges handle a serious situation which evidently these be- county. lieved to exist within their But the method em- ployed in the selection jury of this in the hands of a less scrupulous possible official would for make him to hand pick might and one which do bidding his either in punishing protecting friends, enemies or or both. He could jury any particular exclude from the all person, friends empanel his adversaries. And when we venture into the realm of rivalry, political entanglements business religious controversies, imagina- there is no limit to our carry injustice us respecting wrongs tions may wrought by unscrupulous judge following employed by judge method in selecting trial and em- paneling the in the present instance. It is not what method, following may has been done this what but be done thereunder, dangerous that renders it and obnoxious to our *12 justice. sense remedy
I am satisfied will not reach dangerous instance, method followed in this and therefore what question as to judgment. in the have concurred may be that us. It before applicable is not remedy is may be had relief that no law is such the sit- If is the case provisions of our statutes. remedial thought and calls for earnest more serious and uation is much in the who are concerned part of those grave on the concern opinion expressly refrains justice. Our administration of judge, practices trial the methods approving irregular improper. the same as impliedly condemns Concurring. I concur the conclusion SEAWELL, J., in accord with the opinion. I am also main reached by Mr. Justice Curtis positive enlarged expressed views organization may dangers obtain adopted in the instant matter should if method juries, grow precedent. into 14976.
Rehearing L. A. cLenied October 29, In Bank. No. 15296. A. 1935.] [L. THE STATE MYERS, Petitioner, v. BAR OF JOHN H. CALIFORNIA, Respondent.