McFARLAND, J., dissenting.
I dissent, and think that the writ of prohibition asked for should be granted. I base this conclusion on the ground that at the time of the presentation of the indictment against the petitioner the body of men who undertook to indict him was not a grand jury, and that the purported indictment was a nullity and gave no jurisdiction to the superior court to try the petitioner.
A man cannot be legally placed on trial for a felony at the will of any person or body of persons who may choose to make an accusation against him. The accusation must be made in manner as provided by law, and if there is no such accusation there is no jurisdiction in any court to try the accused. In this state there are only two legal ways of putting a man upon trial for a felony: one by information after open examination and commitment by a magistrate, which need not be here considered ; the other—the one claimed to have been followed in this case—by indictment by a grand jury. The court is about to proceed to try petitioner upon a paper writing in the form of an indictment for a felony, filed in the court, and presented by a body of men claiming to be a grand jury. Petitioner alleges that this body was not a grand jury at the time the said paper writing was presented; and if this be so, as I am clear it is, then there is no jurisdiction in the subordinate court to proceed with the trial and the writ of prohibition should issue. Respondent concedes that if this be so the remedy by prohibition is proper.
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The ordeal of being compelled to submit to a trial upon an indictment for an alleged felony is a most onerous one. The accused must prepare for a trial, he must endure all the temporary obloquy of such a charge; though innocent, he must take the chances of being convicted upon insufficient evidence, which may easily happen when there is a great public feeling against him or against a class to which he is supposed to belong, and juries are liable to be insensibly influenced by popular clamor. Moreover, though acquitted, he can never wholly escape the shadow of the cloud which an indictment and trial have cast over him; his enemies may always intimate that he was acquitted merely becaúse the evidence was not quite strong enough to show him guilty beyond a reasonable doubt. It is therefore not only the right of the accused person to resist a trial when .not prosecuted according to law, but it is his duty to himself, to those dependent on him, and to his friends to do so.
The provisions of the code upon which the question in this case arises are, so far as material, briefly as follows: Section 204 of the Code of Civil Procedure provides that in January “in each year” a majority of the judges of the superior court of San Francisco shall make an order designating the estimated number of grand jurors that will in their opinion be required for the transaction of the business of the court ‘ during the ensuing year”; immediately after making such order they “shall select and list” the grand jurors required by said order to serve as grand jurors in said superior court during the ensuing year
or until new lists shall he provided,
and lists .of “persons so selected” shall immediately be placed in the possession of the county clerk. Section 209 of the Code of Civil Procedure provides that upon receiving such list the county clerk shall file the same in his office, write the names of the persons selected on separate pieces of paper of same size and appearance, and fold each piece so as to conceal the name thereon, and shall deposit these pieces of paper with the names on them in a box to be called the “grand jury box.” From the persons whose names are thus in the box a grand jury must be drawn and impaneled whenever a grand jury is needed for the transaction of the business of the court. Section 210 provides (and this is the most important provision bearing on the question here involved) as follows: “The per-
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sons whose names are so returned shall be known as regular jurors, and shall serve for one year, and
until other persons are selected and
returnedThe facts bearing upon the question presented in the case at bar are these: In January, 1906, the judges of said superior court made an order that one hundred and forty-four grand jurors would be required for the transaction of the business of the court during the ensuing year. They selected one hundred and forty-four persons and gave a list thereof to the clerk, who filed the same in his office and put the names of such persons each on a separate and similar piece of paper in the grand jury box, as required by the provisions of the code hereinbefore referred to. From this box a grand jury was drawn and impaneled during the year 1906. In January, 1907, the judges again made an order that one hundred and forty-four grand jurors would be required to transact the business of the court for the ensuing year; they selected that number of persons for grand jurors and gave a list of them to the clerk, who filed the same and put the names on separate pieces of paper in the grand jury box, as provided by the code. This was all done not later than February 14, 1907, and if thereafter 'during the ensuing year it became necessary to have a grand jury for the transaction of the business of the court, these persons who were thus selected in January, 1907, and whose names were in the grand jury box for that year, were the proper persons from whom to draw and impanel such grand jury. No jury, however, was impaneled from such persons; but the persons who constituted the said former grand jury of 1906 assumed to continue to act as grand jury after January, and are still assuming so to act, and on May 24th, about four months after said new list had been provided, they presented to the superior court a paper writing which in form is an indictment of petitioner for felony. It is upon this paper writing that the respondent court is about to proceed to try petitioner. There is no other accusation against him.
Under the code provisions and the facts as above stated the invalidity of said paper writing as an indictment is so plain, clear, and obvious to my mind that the subject does not present to me even a debatable question.
Under the code the persons selected in January of each year are to act for one year and “until” other persons are selected
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the next year. This means that they shall act only until the happening of the event mentioned, and not afterwards; the word “until” as used in section 210 is a word of limitation, and designates the end of the thing referred to. The meaning of this word when used as in the code is aptly stated by the court of appeals of Missouri in
Maginn
v.
Lancaster,
100 Mo. App. 116, [73 S. W. 372], as follows: “The word ‘until’ is a word of limitation, used ordinarily to restrict what immediately precedes it to what immediately follows it. Its office is to point out some point of time, or the happening of some event, when what precedes it shall cease to exist, or have any further force or effect.” But there is no need to elaborate this proposition further, because, as I understand it, there is no serious contention that the word “until” in section 210 is not a word of limitation as to the persons and things to which it refers; but it is contended that it does not apply to the persons who constituted the grand jury of 1906 and who claim to still constitute a legal grand jury, notwithstanding the provisions of the code and the fact that in January, 1907, “other persons” were selected.
In support of the point last above mentioned it is contended that the provision in section 210, that after the selection of “other persons” the former persons shall not serve, does not mean that they shall not serve when impaneled in a grand jury, but that it refers only to those whose names are in the jury box liable to be called upon to form a grand jury but who have not been so called. I see no rational ground for such contention. The language of the code certainly does not contain any such out-of-the-way limitation of the word. It simply uses the plain word “serve” in its ordinary sense; there is no limitation of its meaning—no intimation of an intent to employ a well-known English word in a sense different from that which is commonly attached to it. We are therefore to give the word its ordinary meaning, just as we give to other common words their ordinary meaning, considered, of course, in the relation which the word bears to the context. Now, what is the plain meaning of the word “serve” as applied to the persons selected as regular grand jurors under the code? The general meaning of the word “serve” is to “perform service,” and it is difficult to see how a person whose only relation to a grand jury consists of his name being in a box—frequently without his
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knowledge—can possibly serve in the sense of performing service. It seems to me that he can properly be said to “serve” as a grand juror only when he is in a position to do something as such juror—only after his impanelment into a grand jury has given him the power to perform some act in the capacity of grand juror. But suppose it be considered not improper to say that he serves when he is merely in the negative position of being liable to be called upon to act as a grand juror,—upon what species of reasoning can it be held that he ceases to serve as soon as he is impaneled into a grand jury ? "When he is acting as a member of an impaneled grand jury is he not serving ? To say that before he becomes a member of an impaneled grand jury, and while he does not do, and cannot possibly do, any act of service, he is nevertheless serving, but that when he becomes part of a grand jury, and can and does render service, he does
not
“serve,” is substantially to say that when he does not serve he “serves,” and that when he does serve, he does not serve. The word “serve” as used in section 210 clearly includes every act and every situation to which the word “serve” as a grand juror can in any sense apply. There is certainly no language in the code that intimates that a grand juror is not serving when he is acting as part of an impaneled grand jury; on the other hand, it appears from section 211 that serving on such a jury is the only way in which he can “serve,” for it provides that if at the end of the year there shall be persons selected as grand jurors “who may not have been drawn during the year to serve, and have not served as jurors, such persons may be placed on the list of jurors drawn for the succeeding year.” I cannot imagine how, in the face of this provision, it can be gravely asserted that to “serve” as used in section 210 does not mean to serve as a grand juror. Clearly section 210 limits the term of service of a person selected as a grand juror,—limits it for all purposes, limits it as to all kinds of service as a grand juror; and after the happening of the event referred to in said section he is no longer qualified as such juror. This plain and obvious meaning of the code is, in some of the respondent’s briefs, sought to be explained away by the assertion that while the term of a grand juror is limited there is no limitation of the term of a grand jury. But how can there be a legal grand jury which is composed of persons who are not qualified to
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act as grand jurors, and why speculate about the impossible term of an imaginary grand jury which has no existence ?
It is also sought to escape the plain, obvious meaning of the code as above stated by invoking the rule of
stare decisis.
This attempt is based on the case of
In re Gannon,
69 Cal. 541, [11 Pac. 240]. The opinion in that case no doubt expresses views favorable to respondent’s contention, but so far as it does so the opinion is, I think, clearly erroneous. But that case does not support the doctrine of
stare decisis
for several reasons. In the first place the rule of
stare decisis
has seldom or ever been successfully invoked in a criminal case involving liberty; it applies to civil actions where a rule of property or commercial business has been established. In the second place, the question here under discussion was not necessarily involved in the Gannon case. That case was an attempt, on
hateas corpus,
to be discharged from a judgment of imprisonment rendered by a superior court for contempt committed by the petitioner in refusing to testify as a witness before an acting grand jury claimed by him to be an illegal body; but the court held that the illegality of a grand jury could not be thus collaterally attacked. The court said: “The authority of such a body, whether it be
de facto
or
de jure,
cannot be legally assailed or called in question by a witness summoned before it. The authority of such a body, exercising its powers as instrumental to the court of which it is a part, must be respected and obeyed.” That was an adjudication of the case on that point; and whatever else was said in the opinion was otiter. The position taken in the Gannon case which is here relied on was also assumed to be correct in the case of
Kelly
v.
Wilson,
which has not been reported, but may be found in 11 Pac. 244 (Cal.). That case, however, was decided at the same time as the Gannon case, and was based entirely upon the authority of the Gannon ease, and therefore adds nothing to that authority. 'Aferwards the only case in which the Gannon case was brought before this court is the case of
People
v.
Leonard,
106 Cal. 302, [39 Pac. 617], and in the latter case the part of the opinion in the Gannon case here relied on was questioned and substantially disapproved. In the Leonard case the question was whether a valid indictment could be presented by a grand jury of a former year attempting to hold
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over after the list of other persons had been selected for the succeeding year. If the court had been satisfied with the opinion in the Gannon case on that point, it clearly would have acted on the authority of that case. It, however, proceeded to inquire into the very question disposed of in the opinion in the Gannon case, and held the indictment good because it did not appear that a new list had been prepared for the coming year. The court says: “It does not appear from the record, and is not probable, that in fact the jurors for 1894 had been ‘selected and returned’ at the date of the finding of the indictment. If they had not been, it was clearly proper to continue the jury of 1893 until such event happened.” This language leaves an inference'as broad as the trail of an army that if the record had shown that a new list had been made the indictment would have been held invalid. While this may not perhaps be said to be an express overruling of that part of the opinion in the Gannon case here relied on, it certainly undermined and shattered it so much as to leave it without value as a basis for the extreme doctrine of
stare decisis
here invoked.
I see, therefore, in all that is argued by respondent no successful method of evading the obvious meaning of the code provisions on the subject of grand jurors; and why should not that obvious meaning be accepted instead of trying to find some hidden and labored reason for evading it? The kind of construction contended for by respondent would be too strained to warrant even a ruling in support of marriage, or legitimacy of children, or any other
status
expressly favored by the law. But when such construction is invoked in a criminal case, and against the liberty of the citizen, it is, in my opinion, beyond the reach of the farthest and thinnest shadow of any legitimate principle of interpretation.
The history of free government presents no spectacle more noble than that of an accused American citizen successfully demanding that he be proceeded against according to “the law of the land.” The right to make such demand is the beneficent result of centuries of struggles by English-speaking people for personal liberty, and to sustain the contention of respondents in the case at bar is, in my opinion, to clearly deny that right, and to mar the most important and sacred feature of American law.
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When a list of persons have been selected in January to serve as grand jurors for the ensuing year, why should not a grand jury when afterwards required be drawn and impaneled from such list? In the case at bar it may be assumed that this course was not taken through inadvertence, and not from any unworthy motive. But the power to thus juggle with grand juries—to retain the old jury indefinitely or to impanel one from the new list, just as certain ruling interests may be subserved by the one course or the other—is a most dangerous power, and should not be countenanced for an instant, unless clearly given by the law; and the law gives no such power. It would be better for a score of accused persons to be temporarily discharged than that one. accused person should be denied due process of law. The public will suffer nothing by a compliance with the code provisions about grand jurors. A grand jury can be immediately drawn from the box of 1907 and legally impaneled, and such jury, if there really is a
prima facie
case of guilt against the petitioner, can at once legally indict him and he then can be properly placed upon his trial.