114 N.W. 475 | N.D. | 1908
This is an application for a peremptory writ of prohibition against the defendant Edward T. Burke, acting as judge of the district court of the Sixth judicial district on the request of the judge of said district. The facts on which the writ is prayed for are the following: The judge of the district court of the Sixth district ordered a grand jury to be summoned for the November term of the district court to be held in the county of Morton in said district, and requested the defendant who is the judge of the district court for the Fifth Judicial District to preside at said term, and said defendant did preside at said term. A grand jury was regularly summoned, impaneled and sworn, and proceeded with the performance of their duties, and considered the evidence produced by the state in the action entitled the State of North Dakota v. Fred Zinn, and failed to find an indictment against said Zinn, and reported that fact to the court and recommended a dismissal of that action. Upon the presentation to the court of such report, the district court made an order discharging said grand jury, and recited in the order discharging it that the evidence submitted to the grand jury “was sufficient on which to base an indictment,” and said order further recited that “the court being satisfied that said failure to indict in said case was not based upon the evidence, but upon the determination of said grand jury not to enforce the provisions of said prohibition laws, and the court believing that the other cases above mentioned would not receive at the hands of said grand jury fair consideration upon the evidence, by reason of said grand jury’s-prejudice' against the prohibition law, and that it would serve no..
Upon the examination of the jurors by the court and the attorneys on behalf of persons who had been held to answer to the district court for offenses charged against Ihem, two were excused as exempt on account of age, one by consent, and four were excused on challenges interposed and granted. This left ten persons present qualified to act as grand jurors. Thereupon the court ordered that the officers designated by law as a board to draw grand and petit jurors convene and draw the names of four persons to serve in the place of the four persons who were not served with the venire and did not appear. A further order was made at the same time commanding the summoning of nine other persons to serve as jurors in place of the nine persons who were excused on challenges. These were ordered summoned from the body of the county, and George Leonard was appointed as the officer to summon the nine jurors last mentioned. Said Leonard was a deputy sheriff, and was so named in the order. The grand jury was thereafter impaneled and sworn and proceeded upon the discharge of their duties, and found an indictment against said Fred Zinn, and also indictments against others for violation of the prohibition law of the state. Upon being arraigned under the indictment said Zinn moved to set aside the same for the following grounds: (li) That talesmen were summoned by the deputy sheriff and not by the sheriff. (2) That the panel was completed by the summoning of talesmen when it should have been done by ordering names drawn by the officers comprising the board to draw names of jurors. (3) That the discharge of the first jury and the calling of the second jury were unwarranted and illegal. (4) That
Under our view of the law applicable to the facts disclosed by the record, we have but one question to determine, and that question is, do the facts entitle the petitioner to a writ of prohibition? In other words, did the district court have jurisdiction to pass upon and decide the several questions presented to it? It is, of course, not disputed that the district court has jurisdiction to summon and impanel grand juries, and also has jurisdiction of the person of Zinn and of the offenses with which he was charged. Hence it irrefutably appears that the district court has complete jurisdiction to pass upon the legality of- all acts of the grand jury and in reference to the summoning and proceedings thereof. There is no merit in the contention that the second jury was an illegal one, which is based on the contention that the first jury was unlawfully discharged. A grand jury is one of the instruments or agencies through which the court acts in the enforcement' of the laws. It is called by the court, and is always subject to be excused from further attendance on duty. We have nothing to do with the necessity under which the court deemed it proper to discharge the first jury. The record discloses that the court was convinced that the jury was not acting with a conscientious desire to be guided by the evidence submitted to them, showing a violation of the prohibition law. If such was the case it would be farcical to allow them to continue and further disregard the law and violate their oaths. But we have nothing to do with the policy or wisdom or necessity of the court’s action in this regard. We are concerned only with the question as to whether the court had jurisdiction, and it needs no citation of authority to sustain the court’s action in this case so far as jurisdiction is concerned.
“Sec. 7835. The writ of prohibition is the counterpart of the writ of mandamus. It arrests the proceedings of any '-.tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person.
“Sec. 7836. It may be issued by the supreme and district courts to an inferior tribunal, or to a corporation, board or person in all cases when there is not a plain, speedy and adequate remedy m the ordinary course of law. It is issued upon affidavit on the application of the person beneficially interested.”
Cases are numerously cited by the petitioner where appellate courts have decided some of the questions raised by him in this case in favor of his contention. But these cases have no relevancy in the case at bar, as the only question involved is one of jurisdiction, and whether these objections would be held good on an appeal is not before us. The only case cited closely in point is that of Bruner v. Superior Court, 92 Cal. 239, 28 Pac. 341. In that case an elisor was ordered by the court to summon persons to complete a grand jury panel without any,showing that the sheriff was disqualified. The court held that service by the elisor was without authority, and a majority of the court held that the lower court had no jurisdiction to proceed on the trial of an indictment found by the jury, and that prohibition was an available remedy. This case is not strictly parallel with that case on the facts. In this case, as before stated, the officer appointed had authority to summon these jurors by virtue of being deputy sheriff, and the acts of the deputy were the acts of the sheriff. In any event, whether the service was technically regular or not, we are satisfied the the irregularity did not effect the court’s jurisdiction to proceed in the case. To,permit a resort to this writ on such objections would seriously impair and delay the enforcement of the laws through means not within the purview and purposes of the writ — to keep inferior tribunals within their lawful jurisdiction.
In a case in the supreme court of Colorado presenting similar questions as in the case at bar as to drawing and impaneling a grand jury, the court said: “If a court has the power to determine such matter, then error in disposing of it results in nothing more than an erroneous judgment based upon an erroneous view of the law. The district court is by law vested with authority to impanel a grand jury. In performing this function it may commit error by failing to observe the statutory or common-law provisions relative to impaneling grand juries, but having by law the authority to .impanel grand juries, errors in procedure, however flagrant, do not cause the court to lose jurisdiction, even if such errors should be so gross and irregular as to require that an indictment should be quashed.” People v. District Court, 29 Col. 83, 66 Pac. 1068.
The conclusion and reasoning of the Colorado court is in harmony with our views as to the circumstances under which a writ of prohibition should be granted. It follows that the petition for the writ must be denied.