In Re Hatch

COOPER, P. J.

Petitioner asks for a writ of prohibition, directed to the superior court of Santa Clara county, and to Hon. J. R. Welch, one of the judges thereof, to stay the proceedings and the trial of the petitioner upon an indictment charging him with the crime of embezzlement, committed in the manner and at the time and place stated in the said indictment.

The writ of prohibition will be issued only in cases where the court is exceeding or is about to exceed its jurisdiction, and there is no plain, speedy and adequate remedy in the ordinary course of law. (Code Civ. Proc., secs. 1102, 1103;

Cross

v.

Superior Court,

2 Cal. App. 342, [83 Pac. 815].) Jurisdiction is the power to hear, determine and pronounce judgment upon the issue before the court. It is not claimed that the court is not the proper court in which the offense should be tried; nor is it denied that the court has the power to try the defendant for the crime of embezzlement as charged in the indictment. The petition alleges and states that after the court had made an order on the thirty-first day of Jan

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uary, 1908, designating the number of grand jurors for the ensuing year, that the order was not made selecting and listing the grand jurors immediately, nor until the twenty-ninth day of February, 1908; that the order for drawing the grand jury did not designate the time at which the drawing would take place; that the jury was drawn under and by the method provided for drawing trial jurors, and not in the manner provided for drawing grand jurors; that the list was served by one Bray, who was not a deputy sheriff, because, it is said, Langford was not the sheriff of Santa Clara county, and that Bray was acting as deputy of Langford; that three jurors were improperly excused from the grand jury-room, and that the district attorney was guilty of improper conduct in expressing to the grand jury his opinion as to the guilt of petitioner.

We are asked in this proceeding to investigate and pass upon the question as to whether or not the body of men who found the indictment constituted a valid, constitutional grand jury. It is sufficient to say that such body of men had been drawn by the clerk from the grand-jury box from the list selected and ordered by the court, and that after they were drawn they were summoned, impaneled, 'sworn and charged with the duties of a grand jury by and under the direction of the court vested with the power to impanel such grand jury. That court was and is a court of record of superior jurisdiction. It.is its peculiar function to pass upon all questions that may be legally brought before it as to the regularity or validity of the grand jury that found the indictment in this case. It has the power in a proper case to hear and determine the question as to whether or not the grand jury is a legally constituted body. It has heard the question in this case by a motion to dismiss the indictment; and having jurisdiction to hear such question it had jurisdiction to determine it either way; and it cannot be said that, because the court determined that it was a valid grand jury, it is now proceeding in excess of its jurisdiction. If the court in such determination committed error, that is a matter that can be corrected on appeal, but the jurisdiction of the court continues. It continues for the purpose of deciding all questions, whether it decides them right or wrong. The questions sought to be raised and determined here relate to the method of procedure in impaneling