People v. Barbour

Terry, C. J., delivered the opinion of the Court—Burnett, J., concurring. Indictment for an assault with a deadly weapon.

This is an appeal from an order of the Court of Sessions, denying a motion to quash an indictment.

The objections taken to the indictment by appellant are:

1. That the Court in which the indictment was found was not constituted according to law.

2. That the law under which the indictment was found has been repealed, and that its provisions were not continued in force as to prosecutions pending under it.

The evidence relied on in support of the first point is an entry in the records of the Court, to the effect that, at the meeting of the Court, there were present the County Judge and one Associate; that the resignation of the absent Associate was read, and ordered to be accepted; and “it is ordered by the Court that Lloyd Magruder, Esq., a duly qualified and acting Justice of the [234]Peace for said county, be and he is hereby appointed to act, for the present term, as Associate Justice,” etc.

The Court of Sessions is composed of the County Judge and two Associates, and the presence of all is necessary to the transaction of business. (5 Cal., 103.)

If, at the time appointed for holding a term, either of the Associates be absent, it becomes the duty of the County Judge to designate some Justice of the Peace of the county to take the place of the absentee. Until this is done, there can be no Court for any purpose. There was no Court in session until Magruder was called to preside, in the absence of one of the Associates.

It is clear, therefore, that this entry is a nullity; it is not a record of the proceedings of a Court; and the fact that the clerk thought proper to insert it in a book used to record such proceedings, can give it no validity. The indictment was presented to a Court consisting of the County Judge and two Justices of the Peace of the county, and the legal presumption is in favor of its validity.

The act of May 17,1853 (Wood’s Dig., 325,) is a sufficient answer to the second objection.

Judgment affirmed.