Levy v. Wilson

Prohibition when Lies — Legal Remedy.—Prohibition lies to arrest the proceedings of a judicial tribunal when they are without or in excess of its jurisdiction, but the writ is issuable only in cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law.

Id.—Irregularities before and after Indictment — Appeal.—The trial of a criminal case will not be restrained by prohibition for mere irregularities and errors in law occurring before and after the finding and return of the indictment. Such matters are reviewuble on appeal.

Id.—Illegal Grand Jury—-Indictment by is Void.—An accusatory paper, found by a body of men styling themselves a grand jury, but who were not a valid and constitutional grand jury, is void and worthless as an indictment, and the Superior Court has no power to try a prisoner under it.

Id.—Order for Drawing Grand Jury—Amendment of.—An order for the drawing of a grand jury for the city and county of San Francisco was made in the Superior Court and filed with the county clerk on the 8th of July, 1885. The order was signed by the presiding judge of the court, and by the judge of the department in which the drawing was to take place, and designated 1 o’clock, p. M., as the hour for the drawing. At the opening of the court at 10 o’clock, A. M., on that day, the judge of the department amended the order by changing the hour for the drawing to 10 o’clock, A. M., and thereupon the clerk, in open court, and in the presence of the judge, but during the absence of the presiding judge, proceeded with the drawing in the manner prescribed by section 219 of the Code of Civil Procedure. Held, that the absence of the presiding judge did not invalidate the drawing.

Id.—Jurisdiction.—Held further, that the change made by the judge of the department in the original order did not divest the court of jurisdiction over the proceeding, and that the order was not void.

Id. — Deficiency in Original Panel — Special Venire to Fill. — Of the persons whose names were drawn from the grand-jury box, twenty-one were summoned and appeared, all but six of whom were excused for cause. The judge thereupon, in order to fill the panel, by an order entered in the minutes of the court, directed the sheriff to summon fifteen persons from the body of the city and county to appear in court and serve as grand jurors. This was done. Thirteen of these, with the six jurors of' the original panel, were recognized by the court and declared to be the grand jury, and as such were impaneled and sworn. ■Held, that the course adopted by the court in filling the original panel was authorized by sections 226 and 242 of the Code of Civil Procedure, and was not in excess of its jurisdiction, although at the time the order for the special venire was made there were sufficient names in the grand-jury box from which the jurors might have been drawn.