People v. Montgomery

MOORE, P. J.

Appeal from an order refusing to assume jurisdiction to act in any way upon the motion of defendant to vacate the judgment of conviction while the appeal from such, judgment was pending.

Defendant was convicted of pandering. The judgment of conviction was affirmed by this court (Division One) September 29, 1941. While his appeal was pending he presented his motion to vacate the judgment of conviction on the following grounds: (1) that the indictment of defendant was returned by a grand jury consisting entirely of white persons while he was a negro; (2) that there had been a systematic exclusion of colored persons in the impanelment of county grand juries over a period of years; (3) that by reason of such facts the indictment contravenes the Fourteenth Amendment to the Constitution of the United States in that it denied defendant the equal protection of the laws granted by such amendment, and (4) that all proceedings based upon the indictment were in contravention of the Fourteenth Amendment and void.

The court declined “to assume jurisdiction to act in any way on the motion as filed.”

[446]

A corrective judicial process has been definitely established for those who claim that they have been denied the right of due process or of equal protection of the laws.

(Johnson

v.

Zerbst,

304 U. S. 458 [58 S. Ct. 1019, 82 L. Ed. 1461] ;

In re Connor,

16 Cal. (2d) 701, 707 [108 P. (2d) 10]; 28 U. S. C. A., chap. XIV, § 451, et seq.;

Mooney

v.

Holohan,

294 U. S. 103 [55 S. Ct. 340, 79 L. Ed. 791, 98 A. L. R. 406].) Under those decisions a prisoner in custody, pursuant to final judgment is entitled to a judicial inquiry into the very truth and substance of the causes of his detention in order to test the jurisdiction of the court which entered the final judgment.