People Ex Rel. Keller v. Superior Court

MUSSELL, J.

In this petition the district attorney of San Diego County prays that this court issue an alternative writ of prohibition to Edgar B. Hervey, Judge of the Superior Court in and for the County of San Diego, restraining said judge from proceeding with the trial of the case of

The People of the State of California

v.

Earl Milford Nelson, Superior Court No. CR-1106,

until further order of this court and to show cause before this court, at a specified time and place, why its order directing the district attorney to produce information regarding jurors should not be revoked, as being in excess of its jurisdiction.

Earl Milford Nelson, a real party in interest, was charged by the grand jury of the county of San Diego on September 21, 1959, by indictment with the crimes of attempted murder (Pen. Code, §§ 664, 187), lewd and lascivious act with a child under fourteen years (Pen. Code, § 288), and murder (Pen. Code, § 187). The defendant entered a plea of not guilty and November 12, 1959, was set as the trial date. On November 5, 1959, counsel for defendant Nelson moved the court for an order directing the district attorney of the county of San Diego “to make available to counsel for defendant all information said office has concerning members of the jury panel from which the petit jury in the above entitled ease will be selected.” This motion was based on the affidavit of Peter J. Hughes, the attorney for the defendant, and on all matters to be presented at the time of the hearing on said motion. The affidavit of Attorney Hughes is not before us and the only indication of its content is the statement in the petition herein that “Attorney Hughes by affidavit alleges on information and belief that said District Attorney has records which indicate for each ease on which a juror sat in the past, the charge, the court, the attorneys, whether the jury convicted, acquitted or disagreed, their deliberation time, and in some instances information concerning the deliberations and attitudes of various jurors.”

[832]

A certified reporter’s transcript of all of the proceedings on the hearing of the motion is before us and it appears therefrom that there was no formal order made by the trial court and that there was no determination or finding made by the trial court of jurisdictional facts sufficient to support the order made at the hearing on the motion. The reporter’s transcript shows that the court after extended remarks, said: