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906. The grand jury was at that time a part , riod of from two to four months. We are of our old county court system. The law satisfied that the latter section of the Penal provided for the impanelment of a grand ju- Code was intended to cover the whole subl'y at the opening of each regular term of ject of the discharge of a grand jury. the county court, unless otherwise directed While we have not discussed all the arguby the judge (section 241, Code Cis. Proc.), ments made by learned counsel in support of and, where such impanelment was to be had. the contention of petitioner, we have considthe judge was required to make an order for ered them all, and find therein no reason to the drawing from the "regular jurors" of a doubt the correctness of the decisions in the sufficient number of grand jurors from which Gannon and Kelly Cases. the grand jury might be selected. Section The application for a writ of prohibition is 214, Code Cir. Proc. This drawing was re- denied. quired to be made at least seven days before the opening of the term. The terms of the MCFARLAND, J. (dissenting). I dissent, county court were fixed by the same Code and think that the writ of prohibition asked Section SS, Code Civ. Proc.), and in nore for should be granted. I base this conclusion than half of the counties, including San Fran- on the ground that at the time of the presencisco, a term commenced on the first Monday tation of the indictment against the petitionof January in each year. By the provisions er the body of men who undertook to indict of a general act, approved March 1, 1872. him was not a grand jury, and that the pureach term of court continued until the next ported indictment was a nullity and gave no regular term. a period varying in length from jurisdiction to the superior court to try the two to four months. unless the business of petitioner. the court was sooner disposed of. The selec- A man cannot be legally placed on trial tions of persons to serve as “regular jurors" for a felony at the will of any person, or for grand jury purposes were then required body of persons, who may choose to make an to be made by the board of supervisors of accusation against him. The accusation must each county at their first regular meeting in he made in manner as provided by law, and, each year, which was ordinarily the first if there is no such accusation, there is no Monday in January. It is apparent from jurisdiction in any court to try the accused. this that the grand jury impaneled at the In this state there are only two legal ways opening of the term of each county court of putting a man upon trial for a felonycommencing on the first Monday of January one or information 'after open examination would be taken from the list of the preceding and commitment by a magistrate, which need year, and that within a very few days after not be here considered, the other, the one such impanelment the new selections of "rer- claimed to have been followed in this case, ular jurors" for the ensuing year would be by indictment by a grand jury. The court is made and returned. t'nder petitioner's con- about to proceed to try petitioner upon a struction, the selection and return of the

paper writing in the form of an indictment new jurors would have discharged the grand

for a felony, filed in the court, and presented jury inpaneled only a few days before, and

by a bods of men claiming to be a grand just commencing the business for which it

jury. Petitioner alleges that this body was had been brought together, and this in the not a grand jury at the time the said paper face of a provision in the Penal Code which

writing was presented; and if this be so, as (learly implies that such jury should con- I am clear it is, then there is no jurisdiction tinue until it completed the business before in the subordinate court to proceed with the it and was discharged by the court, or until trial and the writ of prohibition shoulil isthe final adjournment of the court for the

sue. Respondent conceles that, if this be so, term. Of course, no such absurdity was in- the remely by prohibition is proper. The ortended. Force and effert can be given to the deal of being compelled to submit to a trial various provisions enacted in 1872 relative to

upon an indictment for an alleged felony is juries, as distinguished from jurors, only hy a most onernus one. The accused must preconstruing section 210, Code Civ. Proc., as

pare for a trial. He must en lure all the temit was construed in the Gannon and Kelly

porary obloquç of such a charge. Though Cases. So construeil all the provisions are innocent, he must take the chances of being harmonious and the result sensible. See, al- convicted upon insufficient evidence, which so, State ex rel. Clark . Second Judicial

may easily happen when there is a great pubDistrict Court. 31 Mont. 12. TS Pac. 769. It lic feeling against him, or against a class to has been suggested that the object of section which he is supposed to belong, and juries 210 of the Coile of Civil Procedure was to are liable to be insensibly influenced by popuprevent the keeping in existence any par- lar clamor. Moreover, though acquitted, he ticular granil jury for an indefinite time. It

can never wholly escape the shadow of the is obvious that this could not have been the

cloud which an indictment and trial have purpose of the sertion, in view of the pro- cast over him. His enemies may always intivisions of section 900 of the Penal Code en- mate that he was acquitted merely because acted at the same time, which expressly limit- the evidenre was not quite strong enough to ed the life of the grand jury to the term of show him guilty beyond a reasonable loubt. the court for which it was impaneled, a pe- It is therefore not only the right of the ac

next year.

cused person to resist a trial when not pros- names were in the grand jury box for that ecuted according to law, but it is his duty to year were the proper persons from whom to himself, to those dependent on him, and to draw and impanel such grand jury. No jury, his friends to do so.

however, was impaneled from such persons; The provisions of the Code upon which the but the persons who constituted the said question in this case arises are, so far as ma- former grand jury of 1906 assumed to conterial, briefly as follows: Section 204, Code tinue to act as grand jury after January Civ. Proc., provides that in January "in each and are still assuming so to act, and on May year” a majority of the judges of the superior 24th, about four months after said new list court of San Francisco shall make an or- had been provided, they presented to the der designating the estimated number of superior court a paper writing which in form grand jurors that will in their opinion be re- is an indictment of petitioner for felony. It quired for the transaction of the business of is upon this paper writing that the respondthe court "during the ensuing year.” Im- ent court is about to proceed to try petimediately after making such order they tioner. There is no other accusation against shall select and list" the grand jurors re

him. Under the Code provisions and the quired by said order to serve as grand jurors

facts as above stated the invalidity of said in said superior court during the ensuing paper writing as an indictment is so plain. year, or until new lists shall be provided, clear, and obvious to my mind that the suband lists of "persons so selected" shall im- ject does not present to me even a debatable mediately be placed in the possession of the question. county clerk. Section 209, Code Civ. Proc.. Under the Code the persons selected in provides that, upon receiving such list, the January of each year are to act for one year county clerk shall file the same in his office. and "until" other persons are selected the write the names of the persons selected on

This means that they shall act separate pieces of paper of same size and ap

only until the happening of the event menpearance, and fold each piece so as to conceal

tioned, and not afterwards. The word "unthe name thereon, and shall deposit these til” as used in section 210 is a word of limitapieces of paper with the names on them in a tion, and designates the end of the thing rebox to be called the "grand jury box." From ferred to. The meaning of this word when the persons whose names are thus in the box used as in the Code is aptly stated by the a grand jury must be drawn and impaneled Court of Appeals of Missouri in Maginn v. whenever a grand jury is needed for the Lancaster, 100 Mo. Apr. 116, 73 S. W. 372, as transaction of the business of the court. Sec- follows: "The word 'until' is a word of tion 210 provides (and this is the most im- limitation, used ordinarily to restrict what portant provision bearing on the question immediately precedes it to what immediately here involved) as follows: "The persons follows it. Its office is to point out some whose names are so returned shall be known point of time, or the happening of some event, as regular jurors, and shall serve one year when what precelles it shall cease to exist, and until other persons are selected and re- or have any further force or effect." But turned." The facts bearing upon the ques

there is no need to elaborate this proposition tion presented in the case at bar are these: further, because, as I understand it, there is In January, 1906, the judges of said superior no serious contention that the word "until" court made an order that 144 grand jurors in section 210 is not a word of limitation as would be required for the transaction of to the persons and things to which it refers, the business of the court during the ensuing but it is contended that it does not apply year. They selected 144 persons and gave to the persons who constituted the grand jury a list thereof to the clerk, who filed the same of 1906 and who claim to still constitute a in his office, and put the names of such per- legal grand jury. notwithstanding the prosons each on a separate and similar piece visions of the Code and the fact that in of paper in the grand jury box as required January, 1907, “other persons" were selectby the provisions of the Code hereinbefore ed. In support of the point last above referred to. From this box a grand jury was mentioned, it is contended that the provision drawn and impaneled during the year 1906. in section 210, that after the selection of In January, 1907, the judges again made an "other persons" the former persons shall not order that 144 grand jurors would be requir- serve, does not mean that they shall not ed to transact the business of the court for serve when impaneled in a grand jury, but the ensuing year. They selected that num- that it refers only to those whose names are ber of persons for grand jurors and gave a in the jury box liable to be called upon to list of them to the clerk, who filed the same form a grand jury, but who have not been and put the names on separate piece of pa- so called. I see no rational ground for such per in the grand jury box, as provided by contention. The language of the Code certhe Code. This was all done not later than tainly does not contain any such out of the February 14, 1907, and, if thereafter during way limitation of the word. It simply uses the ensuing year it became necessary to have the plain word “serve" in its ordinary sense. a grand jury for the transaction of the busi- There is no limitation of its meaning—no ness of the court, these persons who were intimation of an intent to employ a wellthus selected in January, 1907, and whose known English word in a sense different from that which is commonly attached to it. limited, there is no limitation of the tern: We are therefore to give the word its ordi- of a grand jury. But how can there be at nary meaning, just as we give to other com- legal grand jury which is composed of permon words their ordinary meaning, consider- sons who are not qualified to act as grand ed, of course, in the relation which the word jurors, and why speculate about the imposbears to the context. Now, what is the plain sible term of an imaginary grand jury which meaning of the word “serve" as applied to has no existence? the persons selected as regular grand jurors It is also sought to escape the plain, obunder the Code? The general meaning of vious meaning of the Code as above stated by the word "serve" is to "perform service," invoking the rule of stare decisis. This atand it is difficult to see how a person whose tempt is based on the case of In re Gannon, only relation to a grand jury consists of his 69 Cal. 511, 11 Pac. 2-10. The opinion in that name being in a box-frequently without his case no doubt expresses views favorable to knowledge--can possibly serve in the sense respondent's contention, but, so far as it does of performing service. It seems to me that so, the opinion is, I think, clearly erroneous. he can properly be said to "serve" as a grand But that case does not support the doctrine juror only when he is in a position to do of stare decisis for several reasons. In the something as such juror-only after his first place, the rule of stare decisis has selimpanelment into a grand jury has given dom or never been successfully invoked in a him the power to perform some act in the criminal case involving liberty. It applies capacity of grand juror. But, suppose it to civil actions where a rule of property be considered not improper to say that he or commercial business has been established. serves when he is merely in the negative posi- In the second place, the question here under tion of being liable to be called upon to act discussion was not necessarily involved in as a grand juror-upon what species of rea- the Gannon Case. That case was an atsoning can it be held that he ceases to serve tempt, on habeas corpus, to be discharged as soon as he is impaneled into a grand jury. from a judgment of imprisonment rendered When he is acting as a member of an im- by a superior court for contempt committed paneled grand jury, is he not serving? To by the petitioner in refusing to testify as : say that before he becomes a member of an witness before an acting grand jury claimed impaneled grand jury and while he does not by him to be an illegal body; but the court do and cannot possibly do any act of service held that the illegality of a grand jury could he is nevertheless serving, but that when he not be thus collaterally attacked. The court becomes part of a grand jury and can and said: "The authority of such a body, whethdoes render service he does not "serve" is er it be de facto or de jure, cannot be legally substantially to say that when he does not assailed or called in question by a witness serve he "serves," and that when he does summoned before it. The authority of such serve he does not serve. The word “serve" a body, exercising its powers as instrumental as used in section 210 clearly includes every to the court of which it is a part, must be act and exery situation to which the word respected and obeyed.” That was an ad"serve" as a grand juror can in any sense judication of the case on that point; and apply. There is certainly no language in the whatever else was said in the opinion was Code that intimates that a grand juror is obiter. The position taken in the Gannon not serving when he is acting as part of an Case, which is here relied on, was also impaneled grand jury. On the other hand, assumed to be correct in the case of Kelly v. it appears from section 211 that serving on Wilson, which has not been reported, but such a jury is the only way in which he car' may be found in 11 Pac. 244. That case, how"serve," for it provides that, if at the end ever, was decided at the same time as the of the year there shall be persons selected as Gannon Case, and was based entirely upon grand jurors “who may not have been drawn the authority of the Gannon Case, and thereduring the year to serve," and have not fore adds nothing to that authority. Afterserved as jurors, "such persons may be placed wards the only case in which the Gannon on the list of jurors drawn from the suc- Case was brought before this court is the ceeding year." I cannot imagine how, in the case of People v. Leonard, 106 Cal. 302, 39 face of this provision, it can be gravely as- Pac. 617; and in the latter case the part of serted that to "serve" as used in section 210 the opinion in the Gannon Case here relied on does not mean to serve as a grand juror. was questioned, and substantially disapproyClearly section 210 limits the term of service ed. In the Leonard Case the question was of a person selected as a grand juror, limits whether a valid indictment could be preit for all purposes, limits it as to all kinds of sented by a grand jury of a former year at. service as a grand juror; and, after the hap- tempting to hold over after the list of other pening of the event referred to in said sec- persons had been selected for the succeeding tion, he is no longer qualified as such juror. year. If the court had been satisfied with This plain and obvious meaning of the the opinion in the Gannon Case on that Code is, in some of the respondent's briefs, point, it clearly would have acted on the sought to be explained away by the assertion authority of that case. It, however, proceedthat, while the term of a grand juror is 1 ed to inquire into the very question disposed

91 P.-63

of in the opinion in the Gannon Case, and should be denied due process of law. The held the indictment good because it did not public will suffer nothing by a compliance appear that a new list had been prepared for with the code provisions about granil jurors. the coming year. The court says: “It does A grand jury can be inuinediately drawn from not appear from the record, and is not prob- the box of 1907 and legally impaneled, and able, that, in fact, the jurors for 1894 had such jury, if there really is a prima facie case been 'selected and returned at the date of of guilt against the petitioner, can at once the finding of the indictment. If they had

If they had legally indict him, and he then can be propernot been, it was clearly proper to continue ly placed upon his trial. the jury of 1893 until such event happened." This language leaves an inference as broad as the trail of an army that, if the record had shown that a new list bad been made

GLASS P. SUPERIOR COURT OF CITY the indictment would have been held invalid.

AND COUNTY OF SAN FRANCISCO. While this may not, perhaps, be said to be an ABBOTT . SAME. SCIIMIDT v. SAME. express overruling of that part of the opinion (S. F. 4.803, 1.838, 1.8JJ.) in the Gaunon Case here relied on, it cer

(Supreme Court of California. Sept. 23, 1907.) tainly undermined and shattered it so mucli as to leave it without value as a basis for the

In Bank. Separate applications for writs extreme doctrine of stare decisis bere in

of prohibition by Louis Glass, by William voked.

M. Abbott, and by Rudolph Schmidt against I see, therefore, in all that is argued by re

the superior court of the city and county of

San Francisco. Denied. spondent, no successful method of evading the obvious meaning of the Code provisions D. M. Delmas, T. C. Coogan, and H. C. Mcon the subject of grand jurors; and why like (D. M. Delmas, of counsel), for retishould not that obvious meaning be accepted. tioner Louis Glass. A. A. Moore, Stanley instead of trying to find some hidden and Moore, Earl Rogers, and Alex. C. King (John labored reason for evading it? The kind Garber and Garret McEnerney, of counsel), of construction contended for by respondent for petitioner W. M. Abbott. Edward F. would be too strained to warrant even a Moran, Cleveland L. Dam, and George Appel ruling in support of marriage, or legitimacy (John C. Quinlan, of counsel), for petitioner of children, or any other status expressly

R. Schmidt. W. H. Langdon, Dist. Atty., favored by the law. But when such con- and Wm. Hoff Cook, Asst. Dist. Atty. (Hiram struction is invoked in a criminal case, and W. Johnson, of counsel), for respondent. against the liberty of the citizen, it is, in my opinion, beyond the reach of the farthest

PER CURIAM. These are applications and thinnest shadow of any legitimate prin- for writs of prohibition. The facts in each ciple of interpretation. The history of free

of the cases are, in all material respects, government presents no spectacle more noble

the same as those in the case of Halsey v. tban that of an accused American citizen suc

Superior Court, etc. (S. F. No. 4,833) 91 Pac. cessfully demanding that he be proceeded

987, this day decided. against according to "the law of the land."

Upon the authority of that case, the apThe right to make such demand is the benefi

plication for a writ in each of the above-encent result of centuries of struggles by Eng

titled causes is denied. lish-speaking people for personal liberty, and to sustain the contention of respondents in the case at bar is, in my opinion, to clearly

(152 Cal. 23) deny that right, and to mar the most im

MANY F. VAXY et al. (Sac. 1,406.) portant and sacred feature of American law. When a list of persons have been selected

(Supreme Court of California. Sept. 19, 1907.) in January to serve as grand jurors for the

1. FRAIDS, STATUTE OF-BOUNDARIES-ESTABensuing year, why should not a grand jury

LISIMEXT-ORAL AGREEMENT.

An oral agreement of adjoining landowners when afterwards required be drawn and im to exchange certain parcels separated from their paneled from such list? In the case at bar respective main bodlies by a road, and that the it may be assumed thąt this course was not

road should be the boundary line, is not effective taken through inadvertence, and not from

when there was no dispute as to the real bound

ary, which is known. any unworthy motive. But the power to thus

[Ed. Note.-For cases in point, see Cent. Dig. juggle with grand juries—to retain the old vol. 23, Frauds, St:tute of, $ 112.] jury indefinitely or to impanel one

2. ADVERSE POSSESSIOX -- REQUISITES -- PAYthe Dew list, just as certain ruling interests MEXT OF TAXES-IDENTITY OF PROPERTY. may be subserved by the one course or the l'nder Code Cir. Proc. $ 325, providing other-is a most dangerous power and should

that adverse possession shall not be established

unless the parties have paid all the taxes, pay. not be countenanced for an instant, unless

ment of the taxes according to the original declearly given by the law, and the law gires scription will not sustain adverse possession in no such power. It would be better for a la defendant who has fenced and had actual score of accused persons to be temporarils possession of the tract under an oral agreement

with an indjacent landowner to exchange certain discharged than that one

one accused persuli

i

triangular parcels separate froin their original

-

main bodies by a diagonal road, when there is along the southerly line of the road, inclosing no dispute as to the true original boundary.

a portion of the N. E. 14 of the S. W. 14 of [Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Adverse Possession, $ 518.)

section 13 within said fence. Thomas Sayre 3. APPEAL-HARMLESS ERROR-ADMISSION OF

and his successors have, during all of the EVIDENCE-FACTS OTHERWISE ESTABLISHED.

intervening years, included within their inWhere plaintiff in an action to recover pos

closure, and occupied and used, the portion session of land shows a clear title under an ab- of lot 2 which lies north of the county road, solute conveyance, which is not overcome by de

and the defendants and their predecessors fendant, any error in the admission of the testimony as to a right previously acquired by plain

have, during all of these years, included withtiff under another agreement is harmless.

in their inclosure, and occupied and used, [E. Yote. For cases in point, see Cent, Dig. the portion of the Y. E. 14 of the S. W. 14 vol. 3, Appeal and Error, $ 4035.]

of section 15 which lies south of the road. In Bank. Appeal from Superior Court, On August 29, 1903, Ann O'Donnell, who had Tuolumne County; G. W. Nicol, Judge.

succeeded to the interest of Thomas Sayre Action by Daniel L. Mann against Cath- in the N. E. 14 of the S. W. 14 of section erine Mann and Esther Durgan. From a 15, conveyed to the plaintiff the strip of land judgment for plaintiff and an order denying in controversy. By showing that the property a motion for new trial, defendants appeal. in dispute was a part of the Y. E. 14 of the Affirmed.

S. W. 14 of section 15. patented to Thomas J. P. O'Brien, for appellants. F. P. Otis

Sayre, and that he was the grantee of the and F. W. Street, for respondent.

successor in interest of Sayre, the plaintiff made out a prima facie case of title in him

self. SLOSS, J. This action was brought to recover possession of a parcel of land situate

The defendants pleaded, in their answer, in Tuolumne county. The plaintiff recover

that they were the owners of lot 2 in section ed judgment declaring that he was the own

15, and that for more than 20 years the er and entitled to possession of the premises.

Woods Crossing and Campo Seco road had The defendants appeal from the judgment,

been recognized and acquiesced in by the and from an order denying their motion for a

defendants, their grantors, and predecessors new trial.

in interest, and by their coterminous owners, The land in question is a portion of the

and by all other persons, as being the common N. E. 14 of the S. W. 14 of section 15, town

dividing line between the Mann tract (includship 1 N., range 14 E. On February 1, 1982,

On February 1, 1882, ing lot 2) and the lands of the adjoining owna United States patent was issued to Thomas ers: that about 25 years ago the said county Sayre for certain land which included said road was fixed upon and established by the N. E. 14 of the S. W. 14 of section 15. Ad- defendants' grantors and predecessors in injoining this 40-acre tract on the south lies terest and by their coterminous owners as lot 2 of said section 15, for which on May 20, being the common boundary line between 1882, a patent was issued by the government

the said Mann tract and the lands of the of the United States to Sarah A. Mann. The contiguous owners thereof; that said lands defendants are the successors in interest of were inclosed and fenced according to said Sarah A. Mann, while plaintiff claims to be boundary line so fixed and established, and the successor in interest of Thomas Sayre. that said inclosures and fences have ever For many years prior to the issuance of either since been maintained upon said common diof the patents above mentioned, a county viding line; that the lands involved in this road, known as the Woods Crossing and controversy are included within the incloCampo Seco road, had run, and still runs, sures and fences of the Mann tract and made diagonally through lot No. 2 and through the

a part thereof. N. E. 14 of the S. W. 14 of section 15, leav

In the cross-complaint substantially the ing a triangular piece of lot 2 lying to the same facts are alleged, together with the furnorth of the road and a piece of the Y. E. ther fact that during all of said times the 14 of the S. W. 14 of section 15, similar in defendants and their grantors have occupied shape, south of said county road. The latter said lands and premises and claimed the same is the parcel in controversy. The respective as their own, and during all of said time patentees of these adjoining tracts had been

have paid all taxes which were levied and in occupation of the same before they re- assessed upon said premises. The cross-comceived their patents. About the year 1973 the plaint prays that the defendants' title be Sayre tract was inclosed with a fence. The

quieted against any claim of the plaintiff. Manu tract was inclosed with a fence in the ; The findings of the court were against the year 1884. In inclosing each of these tracts affirmative defense set up and against the the owners built their respective fences upon allegations of the cross-complaint. The court the lines of the county road; that is to say, found that the dividing line hetween the N. Thomas Sayre built his fence along the E. 1 of the S. W. 11 of section 12. and lot northerly line of the Woods Crossing and 2 in said section 13. is a certain line as Campo Seco road, thus inclosing the portion surveyed in 1884 or 1883 and established by of lot 2 !ying to the north of that road, and iron pins driven in the ground. It found, the occupant of the Mann tract built a fence further, that the county road above referred

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