Grand Jury of San Joaquin v. Shepard

[173]

BEATTY, C. J.

This is a proceeding under section 758 of the Penal Code instituted by an accusation in writing presented by the grand jury of San Joaquin County charging W. T. Shepard, a member of the Stockton city council, with corrupt misconduct in office. A trial of the accusation resulted in the conviction of defendant. A transcript of the record has been filed here which contains no evidence that an appeal has been taken to this court or to any court except a stipulation of counsel that it contains a correct copy of a notice of appeal while in fact no such copy is to be found. We shall assume, however, in the absence of any objection on the part of the People, and in view of an otherwise regular submission of the cause, that an appeal to this court was duly taken in conformity to the decision in the Burleigh case (145 Cal. 36, [78 Pac. 242]) in which it was held (contrary to my opinion) that an accusation presented under said section 758 is not an indictment, .and consequently tha,t the only appeal allowed in this class of cases is that secured by the statute to the defendant. (Pen. Code, see. 770.) Upon this assumption I shall proceed to consider such of the numerous errors assigned as counsel has attempted to sustain by argument. ■

1. The accusation against the defendant contained fifteen specifications of misconduct. He demurred to the accusation upon that ground and as to each specification moved to strike out. His demurrer was overruled and his motion to strike out sustained as to the specifications Nos. VI and XIII. Upon the remaining thirteen he was put to trial. His general objection to the accusation presented by the demurrer is the joinder of distinct charges of misconduct, and this he attempts to sustain by reference to the rule governing indictments. But as held in the Burleigh case and in other cases, the rule restricting indictments to a single charge does not apply to this class of accusations in which more than one specification may be joined.

2. The more specific objections to the accusation presented by the demurrer, and by the several motions to strike out were, in effect, that the facts alleged did not constitute official misconduct. The various charges were in substance that the defendant had extorted money from parties soliciting franchises or privileges from the council of which he was a member, or having large claims against the city for moneys due,