Husband v. Superior Court

WORKS, P. J.

These two proceedings present an identical question of law and they may therefore be treated in a single opinion.

Certain indictments were found by the grand jury against petitioner. During the taking of testimony at hearings before that body, which resulted in the indictments, there was present the county grand jury auditor, an officer appointed pursuant to the provisions of section 928 of the Penal Code. It is contended by petitioner that the presence of that functionary in the grand jury room invalidates the indictments and that therefore respondent court has no jurisdiction to try petitioner under them. Respondent insists that the auditor was properly present at the sessions, but we think he was not. Section 925 of the Penal Code is

[446]

partially to the effect that “No person other than those specified in this and

the succeeding section

[italics ours] is permitted to be present during the session of the grand jury except the members and witnesses actually under examination.” The section also designates persons who may be present in addition to the members of the jury and the witnesses, but the auditor is not among them. Neither section 926 nor 927 of the code contains matter pertinent to the language quoted above which ends with the three italicized words. Section 928, however, reads in part as follows: “It shall be the duty of the grand jury annually to make a careful and complete examination of the books, records and accounts of all the officers of the county, and of every city board of education within the county, and especially those pertaining to the revenue, and report as to the facts they have found, with such recommendations as they may deem proper and fit; and if, in their judgment, the services of an expert are necessary, they shall have power to employ one, at an agreed compensation, to be first approved by the court; ...” If this latter section provided for the presence of the expert, or auditor, at sessions of the grand jury, held for the purpose of taking testimony preliminary to the possible finding of an indictment for the commission of crime, we think, under well-known rules of statutory interpretation and construction, that the interposition of sections 926 and 927 between sections 925 and 928 would not interfere with a consideration of section 928 as the one pointed to by the words we have italicized above. But section 928 does not provide for the presence of the auditor during criminal investigations, either directly or by proper implication. This appears, we think, from the portion of the section above set forth, and the view is strengthened by a perusal of the remainder of the enactment, which we do not quote in full because of its length. We think, then, that the presence of the auditor was in violation of the provisions of section 925.