In Re Rogers

[469]

HENSHAW, J.

The petitioner was subpoenaed before the grand jury sitting in the city and county of San Francisco, and having been sworn as a witness before that body, there were propounded to him certain interrogatories. Upon his refusal to answer, the foreman of the grand jury made affidavit setting forth at length the questions which had been propounded to the contumacious witness, and stating that the body of which he was foreman was engaged in the consideration of a charge of felony against one John M. Chretien as to whether said John M. Chretien had forged the indorsement “John Sullivan” on a check. The check was alleged to have been given in payment for the interest of John Sullivan, the alleged heir of Joseph Sullivan, deceased, in the estate of Joseph Sullivan, deceased, and (so proceeds the affidavit) “it then and there became material to know whether said John Sullivan was the brother and lawful heir of said Joseph Sullivan, deceased, and as to whether any such person as John Sullivan was in existence.” This affidavit having been presented to the presiding judge of the superior court, Rogers was cited to appear, and did appear, and made a showing why he should not be compelled to answer the questions propounded. After hearing, the court made its order and judgment that the questions propounded were each and all legal, proper, and pertinent to the matter under inquiry by the grand jury, and directed this petitioner, when next called before the grand jury, to answer them. Again called before the grand jury, the witness again refused to answer, justifying his contumacy upon the ground: 1. That the questions were not relevant or pertinent to the matter under inquiry; and

2.

That the answers to them might tend to incriminate him and to degrade his character. As to the relevancy and pertinency of the questions propounded it is sufficient to say that the decision of that matter rests with the judge and not with the witness, but that the decision of the judge at

nisi prkis

is reviewable by this tribunal under the writ.

(Ex parte

Zeehandelaar, 71 Cal. 238.) Otherwise the production of evidence would cease to be under the control of the court, and would depend upon the opinion of the witnesses.