17 P.2d 764 | Cal. Ct. App. | 1932
These two proceedings present an identical question of law and they may therefore be treated in a single opinion.
[1] Certain indictments were found by the grand jury against petitioner. During the taking of testimony at hearings before that body, which resulted in the indictments, there was present the county grand jury auditor, an officer appointed pursuant to the provisions of section
[2] Section
It has been settled, as must appear obvious, that the provisions of section
Notwithstanding the view thus expressed by our highest tribunal we should take some notice of People v. Delhantie,
[3] Petitioner here seeks the writ of prohibition. It is well settled, however, that under a petition alleging proper facts we may order the writ of mandate instead of the writ of prohibition where the latter is prayed. The facts necessary to such a departure are made to appear in the petition before us.
In yielding obedience to the mandate about to be ordered respondent court will naturally consider whether, under all *449 the circumstances of the controversy, petitioner's case should be resubmitted to the grand jury.
A peremptory writ of mandate will issue, directing respondent court to dismiss the assailed indictments.
Craig, J., and Thompson (Ira F.), J., concurred.
A petition by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on February 23, 1933.