Bruner

I dissent. It,seems to me that the only serious question in this case is, whether the court, in the absence of an affidavit showing that the sheriff and coroner were “disqualified, or by reason of any bias, prejudice, or other cause would not act promptly or impartially,” has the power to direct “an elisor chosen by the court forthwith to summon so many good and lawful men of the county, or city and county, to serve as jurors, as may be required,” which was fully and carefully considered in People v. Southwell, 46 Cal. 141 , *277 and determined against the contention of the petitioner. Under the law then in force, the coroner was authorized to execute process only when the sheriff was a party to an action or special proceeding. It nowhere appears, nor is it suggested, in People v. Southwell, 46 Cal. 141 , that the sheriff was disqualified to serve the venire. Therefore the power of the court to direct it to the coroner, in that case, rested upon no better foundation than the power of the court in this case to direct it to an elisor. The court, in People v. Southwell, 46 Cal. 141 , very pertinently remarked that “ a grand jury summoned in pursuance of a venire duly issued cannot be…

This is an application for a writ of prohibition to prohibit the superior court of San Francisco, department No. 6, and the judge thereof, from proceeding further against petitioner upon two certain paper-writings purporting to be indictments. The main ground of the petition is, that the body of men who presented said writings had no legal existence as a grand jury, and that therefore the respondents have no jurisdiction or authority to arraign or try petitioner upon the same. Upon the record presented, two principal questions arise: 1. Was said body a legal grand jury? and 2. If it was not, then is prohibition a proper remedy?

The material facts in the case are undisputed, and are as follows: The respondent the presiding judge made an order that twenty-five names be drawn in the usual way from the “ grand-jury box ” (which contained the names of 144 persons selected by the twelve judges of the superior court), for the purpose of procuring a grand *241 jury. After service by the sheriff on all of said persons who could be found, eighteen of them appeared. Eight of them were excused by the court for good cause, and the others were accepted. No further drawing from the grand-jury…

This proceeding is an application for a writ of prohibition requiring the judge of department No. 6 of the superior court of the city and county of San Francisco to refrain from proceeding further in the trial of one Elwood Bruner, upon the ground that such course would be in excess of the jurisdiction of the court, the alleged indictment upon which the trial is predicated having no validity whatever, because found and presented by a body of men not a grand jury.

The questions presented upon this hearing are very important, and in some respects may be considered quite novel, when precedent is sought in the authorities of this state. But neither the novelty nor the importance of the matter under investigation demands that its final determination should be reached otherwise than by a most careful consideration of principle and authority.

In this case it is so apparent that the court acted without its authority in the appointment of an elisor that the matter demands no extended consideration. Section 4192 of the Political Code reads: “Process and orders in an action or proceeding may be executed by a person residing in the county, designated by the court, the judge thereof, or a…

I concur in so much of the opinion of the court as holds that the appointment of an elisor to select and summon talesmen for the completion of the grand jury was, in the absence of any finding of disqualification of the sheriff, a violation of the statutory provisions regulating the formation of grand juries. But I do not think it can be held that the superior court is exceeding its jurisdiction in proceeding with the trial of the petitioner upon the indictments which have been presented against him, and if not, its action cannot be arrested by prohibition.

Precisely the same vice which infects the proceedings in this case was disclosed in the Southwell case, and several later cases in which it has been followed (People v. Southwell, 46 Cal. 141 ; People v. Colby, 54 Cal. 37 ; People v. Hunter, 54 Cal. 65 ), in all of which it was expressly held that for such a violation of the statutory provisions ou this subject there was no remedy by appeal. This would, of course, be, as the court intimates, only an additional reason for holding that prohibition is the proper remedy, if, as contended, the superior court has no jurisdiction to try an indictment found and presented by a body so…

I dissent. The indictments pending against petitioner in department No. 6 of the superior court of the city and county of San Francisco were returned by a body of men impaneled by that court as a grand jury, and charged by it with the duties pertaining to such a body. In my opinion, the learned judge of that court committed an error in making the order which directed the summoning of some of its members by an elisor, in the absence of a showing that the sheriff was disqualified to perform that duty. Section 226 of the Code of Civil Procedure provides: “When, ever jurors are not drawn or . summoned to attend any court of record or session thereof, or a sufficient number of jurors fail to appear, such court may order a sufficient number to be forthwith drawn and summoned to attend the court, or it may, by an order entered in its minutes, direct the sheriff, or a elisor chosen by the court, forthwith to summon so many good and lawful men of the county, or city and county, to serve as jurors, as may be required, and in either case such jurors must be summoned in the manner provided in the preceding section.” This section does not, when properly construed, give to the judge an absolute…