91 P. 987 | Cal. | 1907
Lead Opinion
The petitioner seeks a writ of prohibition to restrain the superior court of the city and county of San Francisco from proceeding with his trial under a paper purporting to be an indictment, charging him with having committed a felony, which paper was presented and filed in said court as an indictment by a body of men assuming to act and acting as a grand jury of such city and county. It is claimed by petitioner that at the time of the finding and presentation of this indictment (March 20, 1907) this body of men did not constitute a grand jury at all, and that consequently the indictment is a nullity, and the superior court is without power to try him on the charge therein made.
Upon the oral argument it was admitted for all the purposes of this proceeding that this body of men was regularly and legally drawn from the names in the grand jury box for the year 1906, and regularly impaneled and organized as the grand jury of said city and county on the ninth day of November, 1906, and has never been discharged by any order of the court, but ever since such impanelment and organization has continued to act as the grand jury of the city and county, and has always been recognized by the superior court as such grand jury. Petitioner's claim here is that this grand jury was discharged by operation of law not later than February 12, 1907, and that by reason thereof the members have ever since constituted not a grand jury, but an illegal and unauthorized body of men, without power to perform any function of a grand jury. *73
The facts relied on as accomplishing this discharge of the grand jury by operation of law are as follows: On January 27, 1907, in conformity with section
The claim of petitioner in this regard is necessarily based on the language of section
Section
This is not a new contention in this court. Section
"But while the statutory law fixes the time within the year for the court to order the selection and return of grand jurors liable to serve in the capacity of a grand jury, and limits the time in which they shall serve for the purpose of the drawing and impanelment of a grand jury, it prescribes no specific time for the drawing of the grand jury, or for its official existence after it has been drawn and impaneled. These the law seems to have left to the judicial discretion of the court, for it provides that `every superior court, whenever in the opinion of the court, the public interest must require it, may make an order directing a jury to be drawn' (Code Civ. Proc., sec. 241); and when the proceedings put in motion by an order made for the purpose result in the drawing and impanelment of a grand jury, it is, as an organized body, in the exercise of its functions and in its official existence, subject to the control of a court that is `always open,' and may *76
at any time, in the exercise of its jurisdiction, order it to be discharged. (Pen. Code, sec.
Six of the seven justices concurred in this opinion. Kelly v.Wilson, (Cal.) 11 P. 244, which was a proceeding in prohibition by an indicted person to restrain the superior court from trying him, under precisely similar facts to those existing here, was decided on the authority of the Gannon case. It is strongly urged that the language above quoted was not necessary to the decision in the Gannon case. This is true in the sense that the case could have been disposed of on other grounds stated in the opinion. It is to be observed, however, that the case of Kelly v. Wilson, in which a decision upon this question was absolutely essential to a denial of the writ sought, was presented by the same counsel appearing in the Gannon case and was decided on the same day as the Gannon case. It is thus apparent that the two cases were under submission at the same time and were considered together, and practically constituted but one case in which the question before us was necessary to a decision. It thus appears that the court in these cases construed section
The above-cited decisions as to the proper construction of the section under consideration, rendered twenty-one years ago, and it is fair to assume ever since followed by the courts of *77 the state, certainly should not be overruled unless they are clearly erroneous. No such situation is here presented. On the contrary, it is our opinion that the construction given the section by our predecessors was the correct one.
Neither section
This is the only possible reasonable construction of the language of section
An examination of other provisions of law enacted at the same time as section
It is inconceivable that there was any such intention as to trial juries. It would be a most absurd provision that a jury engaged in the actual trial of a cause, and perhaps just about to render a verdict after a long and expensive trial, should be deprived of power to act further in the case solely by reason of the fact that a new list of available jurors for the ensuing year had been returned to the county clerk and the names had been deposited in a trial jury box. Such a provision could accomplish no good, and would be productive of great injury. The intention of the legislature as to such juries is clearly shown by other sections of the code adopted at the same time, specially relating to juries. It is apparent therefrom that a jury impaneled to try a case was to conclude that case if possible. As to criminal cases, after providing for the discharge of the impaneled jury in certain contingencies only, such as sickness of a juror, etc., it was provided in section
The intention as to grand juries is equally clear. Express provision as to the time during which an impaneled grand jury shall continue in existence was made in the Penal Code. Unless sooner discharged by the court, they were discharged only by the final adjournment of the court for the term. (Sec.
It has been suggested that the object of section
While we have not discussed all the arguments made by learned counsel in support of the contention of petitioner, we have considered them all, and find therein no reason to doubt the correctness of the decisions in the Gannon and Kelly cases.
The application for a writ of prohibition is denied.
Dissenting Opinion
I dissent, and think that the writ of prohibition asked for should be granted. I base this conclusion on the ground that at the time of the presentation of the indictment against the petitioner the body of men who undertook to indict him was not a grand jury, and that the purported indictment was a nullity and gave no jurisdiction to the superior court to try the petitioner.
A man cannot be legally placed on trial for a felony at the will of any person or body of persons who may choose to make an accusation against him. The accusation must be made in manner as provided by law, and if there is no such accusation there is no jurisdiction in any court to try the accused. In this state there are only two legal ways of putting a man upon trial for a felony: one by information after open examination and commitment by a magistrate, which need not be here considered; the other — the one claimed to have been followed in this case — by indictment by a grand jury. The court is about to proceed to try petitioner upon a paper writing in the form of an indictment for a felony, filed in the court, and presented by a body of men claiming to be a grand jury. Petitioner alleges that this body was not a grand jury at the time the said paper writing was presented; and if this be so, as I am clear it is, then there is no jurisdiction in the subordinate court to proceed with the trial and the writ of prohibition should issue. Respondent concedes that if this be so the remedy by prohibition is proper. *81
The ordeal of being compelled to submit to a trial upon an indictment for an alleged felony is a most onerous one. The accused must prepare for a trial, he must endure all the temporary obloquy of such a charge; though innocent, he must take the chances of being convicted upon insufficient evidence, which may easily happen when there is a great public feeling against him or against a class to which he is supposed to belong, and juries are liable to be insensibly influenced by popular clamor. Moreover, though acquitted, he can never wholly escape the shadow of the cloud which an indictment and trial have cast over him; his enemies may always intimate that he was acquitted merely because the evidence was not quite strong enough to show him guilty beyond a reasonable doubt. It is therefore not only the right of the accused person to resist a trial when not prosecuted according to law, but it is his duty to himself, to those dependent on him, and to his friends to do so.
The provisions of the code upon which the question in this case arises are, so far as material, briefly as follows: Section
Under the code provisions and the facts as above stated the invalidity of said paper writing as an indictment is so plain, clear, and obvious to my mind that the subject does not present to me even a debatable question.
Under the code the persons selected in January of each year are to act for one year and "until" other persons are selected *83
the next year. This means that they shall act only until the happening of the event mentioned, and not afterwards; the word "until" as used in section
In support of the point last above mentioned it is contended that the provision in section
It is also sought to escape the plain, obvious meaning of the code as above stated by invoking the rule of stare decisis. This attempt is based on the case of In re Gannon,
I see, therefore, in all that is argued by respondent no successful method of evading the obvious meaning of the code provisions on the subject of grand jurors; and why should not that obvious meaning be accepted instead of trying to find some hidden and labored reason for evading it? The kind of construction contended for by respondent would be too strained to warrant even a ruling in support of marriage, or legitimacy of children, or any other status expressly favored by the law. But when such construction is invoked in a criminal case, and against the liberty of the citizen, it is, in my opinion, beyond the reach of the farthest and thinnest shadow of any legitimate principle of interpretation.
The history of free government presents no spectacle more noble than that of an accused American citizen successfully demanding that he be proceeded against according to "the law of the land." The right to make such demand is the beneficent result of centuries of struggles by English-speaking people for personal liberty, and to sustain the contention of respondents in the case at bar is, in my opinion, to clearly deny that right, and to mar the most important and sacred feature of American law. *87
When a list of persons have been selected in January to serve as grand jurors for the ensuing year, why should not a grand jury when afterwards required be drawn and impaneled from such list? In the case at bar it may be assumed that this course was not taken through inadvertence, and not from any unworthy motive. But the power to thus juggle with grand juries — to retain the old jury indefinitely or to impanel one from the new list, just as certain ruling interests may be subserved by the one course or the other — is a most dangerous power, and should not be countenanced for an instant, unless clearly given by the law; and the law gives no such power. It would be better for a score of accused persons to be temporarily discharged than that one accused person should be denied due process of law. The public will suffer nothing by a compliance with the code provisions about grand jurors. A grand jury can be immediately drawn from the box of 1907 and legally impaneled, and such jury, if there really is a prima facie case of guilt against the petitioner, can at once legally indict him and he then can be properly placed upon his trial.