The petitioner seeks a writ of prohibition to restrain the superior court of the city and county of San Francisco from proceeding with his trial under a paper purporting to be an indictment, charging him with having committed a felony, which paper was presented and filed in said court as an indictment by a body of men assuming to act and acting as a grand jury of such city and county. It is claimed by petitioner that at the time of the finding and presentation of this indictment (March 20, 1907) this body of men did not constitute a grand jury at all, and that consequently the indictment is a nullity, and the superior court is without power to try him on the charge therein made.
Upon the oral argument it was admitted for all the purposes of this proceeding that this body of men was regularly and legally drawn from the names in the grand jury box for the year 1906, and regularly impaneled and organized as the grand jury of said city and county on the ninth day of November, 1906, and has never been discharged by any order of the court, but ever since such impanelment and organization has continued to act as the grand jury of the city and county, and has always been recognized by the superior court as such grand jury. Petitioner's claim here is that this grand jury was discharged by operation of law not later than February 12, 1907, and that by reason thereof the members have ever since constituted not a grand jury, but an illegal and unauthorized body of men, without power to perform any function of a grand jury.
The facts relied on as accomplishing this discharge of the grand jury by operation of law are as follows: On January 27, 1907, in conformity with section 204 of the Code of Civil Procedure, the judges of said superior court made an order designating the estimated number of grand jurors, and also the number of trial jurors, that would, in the opinion of the court, be required for the transaction of the business of the court and the trial of causes therein during the ensuing year, which number of grand jurors was one hundred and forty-four. Immediately after said order designating the estimated number of grand jurors had been made, said court selected and listed the grand jurors required by said order to serve as grand jurors in said superior court during the ensuing year, or until a new list should be provided, which list of persons so selected was at once placed in the possession of the county clerk, and said clerk, on receiving said list, filed the same in his office. On February 12, 1907, in conformity with section 209 of the Code of Civil Procedure, said county clerk wrote down the names contained on said list on separate pieces of paper, of the same size and appearance, and deposited the same in the grand jury box of said city and county. No proceedings have been had under section 241 of the Code of Civil procedure, in drawing, impaneling, or summoning any of the grand jurors from said list of grand jurors so selected in January, 1907, by the said court as aforesaid.
The claim of petitioner in this regard is necessarily based on the language of section 210 of the Code of Civil Procedure, for there is no other provision of our law, constitutional or statutory, that affords any basis for such a claim. Our constitution simply provides that "a grand jury shall be drawn and summoned at least once a year in each county." (Art. I, sec. 8.) Our Code of Civil Procedure provides (sec. 241) that every superior court, whenever in the opinion of the court the public interest requires it, must proceed to impanel a grand jury, and "in all counties there shall be at least one grand jury drawn and impaneled in each year." Nowhere, unless it be in said section210 of the Code of Civil Procedure, is there any express limitation on the life of the grand jury so impaneled in pursuance of the authorization and requirement of the law, or any implied limitation, except such as may be implied from the requirement that at least one grand
jury must be impaneled in each year. When in obedience to this mandate a new grand jury is impaneled, the life of the former grand jury must necessarily end. Section 906 of the Penal Code, adopted as part of the original code in 1872, and never amended, provides that on the completion of the business before them the grand jury must be discharged by the court, "but whether the business is completed or not, they are discharged by the final adjournment of the court." This section was adopted at a time when we had terms of court. As under the constitution of 1879 we now have no such terms of court, and the superior court is always open for business, there is no such thing as a final adjournment of the court, and the quoted portion of the section is no longer effectual. It, however, assists somewhat in ascertaining the proper construction of section 210 of the Code of Civil Procedure, as we shall hereafter note.
Section 210 of the Code of Civil Procedure is contained in the article relating to the "selecting and returning jurors for courts of record" (art. III, chap. 1, title 3), the article having to do with the selection and placing in the general jury box of the county by the proper officers of the names of persons who may be drawn as required for actual service as jurors, both grand and trial, in the court. The preceding sections of the article having provided for the fixing by the court in January of each year of the estimated number of the grand and trial jurors that will be required for the transaction of the business of the court and the trial of causes therein during the ensuing year, the immediate selection of that number by the officers designated for that purpose, the placing of the lists of such persons in the possession of the county clerk, the filing of the same by that officer, the writing by him of the names on separate pieces of paper, and the deposit of such papers in the "grand jury box" and "trial jury box" respectively (secs. 204 to 209), sec. 210
provides: "The persons whose names are so returned shall be known as regular jurors, and shall serve for one year, and until other persons are selected and returned." Section 211 provides that "The names of persons drawn for grand jurors shall be drawn from the `grand jury box' and the names of persons for trial jurors from the `trial jury box'; and if, at the end of the year, there shall be the names of persons in either of the said jury boxes
who may not have been drawn during the year to serve, and have not served as jurors, the names of such persons may be placed on the list of jurors drawn for the succeeding year." Subsequent articles provide for the method of drawing from these boxes and summoning jurors, both grand and trial, for actual service in the court as they may be required and ordered by the court. The claim of petitioner is that under section 210 the grand jury drawn and impaneled in the year 1906 from the persons selected, listed, and returned as grand jurors for that year, was discharged by operation of law upon the selection, listing, and returning of the one hundred and forty-four grand jurors for the year 1907.
This is not a new contention in this court. Section 210 of the Code of Civil Procedure has existed in practically its present form ever since the adoption of the codes in 1872, and there has been no change in any other statutory provision applicable to jurors or juries that is material to the controversy here. The precise question here presented as to the effect of the provisions of section 210 upon a grand jury regularly impaneled from the list of the preceding year, was considered by this court in Bank in the year 1886 in the cases of In re Gannon, 69 Cal. 541, [11 P. 240], and Kelly v. Wilson, (Cal.) 11 P. 244. In the Gannon case the court, in reply to the claim that the grand jury had ceased to exist for the reasons stated, and was not a legal body, said: —
"But while the statutory law fixes the time within the year for the court to order the selection and return of grand jurors liable to serve in the capacity of a grand jury, and limits the time in which they shall serve for the purpose of the drawing and impanelment of a grand jury, it prescribes no specific time for the drawing of the grand jury, or for its official existence after it has been drawn and impaneled. These the law seems to have left to the judicial discretion of the court, for it provides that `every superior court, whenever in the opinion of the court, the public interest must require it, may make an order directing a jury to be drawn' (Code Civ. Proc., sec. 241); and when the proceedings put in motion by an order made for the purpose result in the drawing and impanelment of a grand jury, it is, as an organized body, in the exercise of its functions and in its official existence, subject to the control of a court that is `always open,' and may
at any time, in the exercise of its jurisdiction, order it to be discharged. (Pen. Code, sec. 906.) A grand jury cannot dissolve itself (Clem v. State, 33 Ind. 418); and as the grand jury whose authority is challenged was not impaneled for any particular time prescribed by law, and has not been discharged by the court in which it is acting, it still exists as an original body, with power to perform its duties."
Six of the seven justices concurred in this opinion. Kelly v.Wilson, (Cal.) 11 P. 244, which was a proceeding in prohibition by an indicted person to restrain the superior court from trying him, under precisely similar facts to those existing here, was decided on the authority of the Gannon case. It is strongly urged that the language above quoted was not necessary to the decision in the Gannon case. This is true in the sense that the case could have been disposed of on other grounds stated in the opinion. It is to be observed, however, that the case of Kelly v. Wilson, in which a decision upon this question was absolutely essential to a denial of the writ sought, was presented by the same counsel appearing in the Gannon case and was decided on the same day as the Gannon case. It is thus apparent that the two cases were under submission at the same time and were considered together, and practically constituted but one case in which the question before us was necessary to a decision. It thus appears that the court in these cases construed section 210 of the Code of Civil Procedure as only limiting the time in which the persons selected shall serve for the purpose of the drawing and impaneling of ajury, and as having nothing whatever to do with the life of a jury, either grand or trial, once regularly drawn and impaneled. No different construction has been given the section by any later case. People v. Leonard, 106 Cal. 302, [39 P. 617], certainly cannot be held to have so done. While the court in that case did observe that it did not even appear that the new jurors had been selected and returned, and that if they had not been it was clearly proper to continue the jury of the preceding year until such event happened, it also apparently adopted the reasoning of the Gannon case as one of the grounds of its decision.
The above-cited decisions as to the proper construction of the section under consideration, rendered twenty-one years ago, and it is fair to assume ever since followed by the courts of
the state, certainly should not be overruled unless they are clearly erroneous. No such situation is here presented. On the contrary, it is our opinion that the construction given the section by our predecessors was the correct one.
Neither section 210 nor any other section contained in the article of which it is a part assumes to deal with any impaneled jury, grand or trial. As to these, elaborate provision is elsewhere made. These sections relate exclusively to the setting apart of a sufficient number of persons eligible for jury duty, from whom may be drawn and brought into court from time to time so many as are required to render actual jury service in court. Section 210 refers only to the persons so set apart, and to them solely in that capacity, — i.e. in the capacity of persons set apart as a body from which a jury may be drawn when wanted. In that capacity all the persons so set apart are, by express provision of the section, known as "regular jurors," although many of them may never be drawn and summoned to attend upon the court at all. In that capacity alone they "serve for one year and until other persons are selected and returned" to take their places. When serving in that capacity some of them are drawn and summoned into court and impaneled on a jury, they there render an entirely different and additional service, which is regulated both as to manner of service and time of discharge by the provisions of the law relating to impaneled juries. Section 210
refers only to the two special classes from which jurors are to be taken, and it is only as members of those special classes, one for grand juries and the other for trial juries, that these so-called regular jurors are required to serve by that section. The term of service there mentioned is the term during which they serve in that capacity, the term during which they may be drawn or selected for actual jury service.
This is the only possible reasonable construction of the language of section 210 as to the term of service, in the connection in which it is used. The meaning thus given to the word "serve" is an entirely permissible one, and the fact that the same word is obviously used in a different sense in other connections is not important.
An examination of other provisions of law enacted at the same time as section 210 of the Code of Civil Procedure demonstrates that the legislature could not have intended the section
to operate as a discharge of any impaneled jury. As we have seen, the section applies to both grand and trial jurors, and the claim of petitioner leads to the result that the selection and return to the county clerk of the list of jurors for the succeeding year and the placing of those names in the general jury box ipso facto
discharges from service and dissolves any impaneled jury, grand or trial, that may then be in attendance on the court, members of which were drawn from lists of the preceding year.
It is inconceivable that there was any such intention as to trial juries. It would be a most absurd provision that a jury engaged in the actual trial of a cause, and perhaps just about to render a verdict after a long and expensive trial, should be deprived of power to act further in the case solely by reason of the fact that a new list of available jurors for the ensuing year had been returned to the county clerk and the names had been deposited in a trial jury box. Such a provision could accomplish no good, and would be productive of great injury. The intention of the legislature as to such juries is clearly shown by other sections of the code adopted at the same time, specially relating to juries. It is apparent therefrom that a jury impaneled to try a case was to conclude that case if possible. As to criminal cases, after providing for the discharge of the impaneled jury in certain contingencies only, such as sickness of a juror, etc., it was provided in section 1140 of the Penal Code that, except as otherwise provided, a jury "cannot be discharged after the cause is submitted to them until they have agreed on their verdict and rendered it in open court," except by consent of the parties or by the court when the jury is unable to agree. Practically the same was true as to civil cases. We cannot reconcile these provisions with section 210 of the Code of Civil Procedure if that section is to be construed as urged by petitioner.
The intention as to grand juries is equally clear. Express provision as to the time during which an impaneled grand jury shall continue in existence was made in the Penal Code. Unless sooner discharged by the court, they were discharged only by the final adjournment of the court for the term. (Sec. 906.) The grand jury was at that time a part of our old county court system. The law provided for the impanelment of a grand jury at the opening of each regular term of
the county court, unless otherwise directed by the judge (Code Civ. Proc., sec. 241), and where such impanelment was to be had the judge was required to make an order for the drawing from the "regular jurors" of a sufficient number of grand jurors from which the grand jury might be selected. (Code Civ. Proc., sec. 214.) This drawing was required to be made at least seven days before the opening of the term. The terms of the county court were fixed by the same code (Code Civ. Proc., sec. 88), and in more than half of the counties, including San Francisco, a term commenced on the first Monday of January in each year. By the provisions of a general act, approved March 1, 1872, each term of court continued until the next regular term, a period varying in length from two to four months, unless the business of the court was sooner disposed of. The selections of persons to serve as "regular jurors" for grand jury purposes were then required to be made by the board of supervisors of each county at their first regular meeting in each year, which was ordinarily the first Monday in January. It is apparent from this that the grand jury impaneled at the opening of the term of each county court commencing on the first Monday of January would be taken from the list of the preceding year, and that within a very few days after such impanelment, the new selections of "regular jurors" for the ensuing year would be made and returned. Under petitioner's construction the selection and return of the new jurors would have discharged the grand jury impaneled only a few days before, and just commencing the business for which it had been brought together, and this in the face of a provision in the Penal Code which clearly implies that such jury should continue until it completed the business before it was discharged by the court, or until the final adjournment of the court for the term. Of course, no such absurdity was intended. Force and effect can be given to the various provisions enacted in 1872 relative to juries, as distinguished from jurors, only by construing section 210, Code of Civil Procedure, as it was construed in the Gannon and Kelly cases. So construed all the provisions are harmonious and the result sensible. (See, also, State v. Second Judicial Dist. Ct.,31 Mont. 428, [78 P. 769].)
It has been suggested that the object of section 210 of the Code of Civil Procedure was to prevent the keeping in existence
any particular grand jury for an indefinite time. It is obvious that this could not have been the purpose of the section, in view of the provisions of section 906 of the Penal Code, enacted at the same time, which expressly limited the life of the grand jury to the term of the court for which it was impaneled, a period of from two to four months. We are satisfied that the latter section of the penal code was intended to cover the whole subject of the discharge of a grand jury.
While we have not discussed all the arguments made by learned counsel in support of the contention of petitioner, we have considered them all, and find therein no reason to doubt the correctness of the decisions in the Gannon and Kelly cases.
The application for a writ of prohibition is denied.