Copeland v. Superior Court

CRAIG, J.

On the seventeenth day of August, 1921, the petitioner was indicted by the grand jury of Los Angeles County for the crime of perjury. To this indictment a demurrer was interposed on the ground that it did not state facts sufficient to constitute a public offense, and the superior court ordered the same sustained, in making of which ruling the following language was used: “Demurrer to indictment sustained and case ordered resubmitted to the grand jury.” The district attorney thereupon resubmitted the case to the same grand jury, and a second indictment was returned against the petitioner also charging him with perjury. It is not denied that this charge was based upon the same subject matter and facts as was the first. The petitioner alleges on information and belief that no witnesses were examined or evidence introduced before the grand jury in the time intervening between the returning by it of the first and second indictments.

In due time the petitioner moved the superior court to set aside the second indictment on the ground that it was not found, indorsed, and presented as prescribed in the Penal Code of California, and particularly section 995 thereof; and that the superior court had no jurisdiction of the subject matter of the action. This motion was denied, the defendant pleaded not guilty, and the ease set for trial, and

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upon application duly made an alternative writ of prohibition was issued by this court.

The petitioner insists that the grand jury finding the second indictment had no jurisdiction, because he asserts the order directing the resubmission of the cause does not comply with section 1008 of the Penal Code; and for the further reason that the grand jury had previously indicted the defendant for the same offense.

As to petitioner’s contention that a grand jury having found one indictment is disqualified to return a second upon the same facts, we have no doubt. This is a matter entirely within the authority of the legislature to regulate. It is one of procedure and hence does not infringe any substantial right of the defendant.

(People

v.

Schmidt,