18 P.2d 329 | Cal. | 1933
The defendant, George Smith, together with one Charles Rossi, true name John Kazarin, was jointly accused by the grand jury of the county of Alameda of having murdered one Reinhold A. Frey on or about December 20, 1930. They were subsequently placed on trial and were both convicted of murder of the first degree, with the penalty fixed at death. Pending the appeal Kazarin committed suicide. The conviction of George Smith was *269 affirmed by this court on June 30, 1932, and the judgment became final thirty days thereafter.
Appellant comes to this court on a purported appeal from an order made by the Superior Court of the County of Alameda in a proceeding taken after the judgment of conviction had become final, which order herein appealed from denied appellant's belated motion for an order striking the indictment in which appellant was charged with murder from the files of said superior court, and for an order vacating, annulling and setting aside the judgment of conviction. The notice was filed on August 29, 1932, and proceedings pursuant thereto were immediately commenced and prosecuted to a final determination. The contention of appellant, as well as we are enabled to understand his position, is based upon alleged irregularities, in that the grand jury which returned and presented the indictment was an illegal body for the reason that the veniremen from which the grand jury of nineteen members was impaneled were not selected by a majority of the judges of the Superior Court of Alameda County, as provided by sections
[1] It seems to be the contention of the appellant that the tentative preparation of the list by the jury commissioner made prior to the day upon which the order was signed by the judges was made without authority of law, and that said superior court was without power to adopt the list of persons so presented by the commissioner for grand jury service because the list, as he terms it, was prematurely prepared by said jury commissioner. We are unable to follow appellant in his contention. The fact that the jury commissioner, whose duty it was to prepare a list of qualified persons to serve as grand jurors, in fact made up a list a week or two before the court met for the purpose of listing or selecting grand jurors, could not debar or disqualify the judges from accepting the list as prepared by the jury commissioner without changes if the judges so determined. The fact that the judges indorsed the list, as shown by the evidence adduced upon the hearing, and further, that they actually appended their names thereto, is conclusive on this subject.[2] Counsel complains that the presiding judge at the hearing refused to permit him to call each member of the Superior Court of Alameda County and interrogate him as to his knowledge of the qualifications of the men who constituted the list, and the manner in which they had been selected. It is very clear from the testimony of the presiding judge, who was examined by appellant, and from the examinations of the custodians of the records in the proceeding, that there was nothing that appellant could have elicited from any of said judges which was not before the court, and, indeed, about which there was any serious dispute. Every fact and circumstance essential to rendering a decision upon the matter was before the court time and again, and the facts of the case for the purpose of this decision may be accepted in accordance with the theory of appellant, and yet he would not be entitled to prevail upon any of the issues tendered by him. *271
[3] As a matter of law the court would have been entirely justified in dismissing the proceeding. We have here the spectacle of appellant attempting to reopen a case which had become final approximately one month prior to the inauguration of this unusual proceeding. Appellant cites cases holding that grand juries summoned by an elisor, a person not entitled to summon a grand jury except in case where there is a disqualification of the sheriff, are illegal bodies. The proceedings had in the cases cited by him were commenced before the trial and conviction of the petitioner. In at least one of those cases this court granted a writ of prohibition, holding that the trial court was without jurisdiction to try the cause and that defendant had no plain, speedy or adequate remedy at law. (Bruner v. Superior Court,
It will be recalled that this court very fully considered the law and facts of this case when presented for our decision upon its merits. (People v. Smith and Rossi,
The judgments and orders made in said proceedings are therefore affirmed.
Shenk, J., Curtis, J., Preston, J., Langdon, J., Thompson, J., and Waste, C.J., concurred.
Rehearing denied.