People v. Smith

SEAWELL, J.

The defendant, George Smith, together with one Charles Rossi, true name John Kazarin, was jointly accused by the grand jury of the county of Alameda of having murdered one Reinhold A. Frey on or about December 20, 1930. They were subsequently placed on trial and were both convicted of murder of the first degree, with the penalty fixed at death. Pending the appeal Kazarin committed suicide. The conviction of George Smith was

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affirmed by this court on June 30, 1932, and the judgment became final thirty days thereafter.

Appellant comes to this court on a purported appeal from an order made by the Superior Court of the County of Alameda in a proceeding taken after the judgment of conviction had become final, which order herein appealed from denied appellant’s belated motion for an order striking the indictment in which appellant was charged with murder from the files of said superior court, and for an order vacating, annulling and setting aside the judgment of conviction. The notice was filed on August 29, 1932, and proceedings pursuant thereto were immediately commenced and prosecuted to a final determination. The contention of appellant, as well as we are enabled to understand his position, is based upon alleged irregularities, in that the grand jury which returned and presented the indictment was an illegal body for the reason that the veniremen from which the grand jury of nineteen members was impaneled were not selected by a majority of the judges of the Superior Court of Alameda County, as provided by sections 204 and 204d of the Code of Civil Procedure. His point seems to be that there was no written order on file in the county clerk’s office of Alameda County, signed by a majority of the judges, fixing the number and ordering the listing and selection of the grand jurors to be listed for grand jury service prior to the day the jury commissioner presented said list to the court. It appears from the record of said proceedings that the jury commissioner, on or about the middle of December, 1929, prepared a list of persons to be summoned for grand jury duty, consisting of sixty, and that on the twenty-seventh day of January, 1930, this list of proposed grand jurors was presented to the Superior Court of Alameda County in bank, at which time all members of the court were present, and by their signatures designated said persons as presented grand jurors for the ensuing year, and from this list the grand jury which indicted the appellant was drawn. It also appears from the testimony in the case that the order designating the number of grand jurors and which also designated the persons to serve as grand jurors was performed as one act on January 27, 1930. It further appears that said list, prior to January 27, 1930, had at least come