Opinion
Habeas corpus to the Superior Court of the City and County of San Francisco. A. A. Sanderson, Judge.
COUNSEL:
It was not within the power of the grand jury to institute a criminal prosecution for a misdemeanor by presentment or otherwise. The police court has exclusive jurisdiction of all crimes of misdemeanor. (Green v. Superior Court , 78 Cal. 556; People v. Joselyn , 80 Cal. 544; People v. Lawrence , 82 Cal. 182; Ex parte Wallingford , 60 Cal. 103; Gafford v. Bush , 60 Cal. 149; United States v. Hill, 1 Brock. 156; Thompson and Merriam on Juries, 658.) The proceedings by presentment, as provided for in sections 916 and 931 to 937 of the Penal Code have been abrogated by the constitution of 1879. (Story on the Constitution, sec. 1949; Wharton's Criminal Pleading and Practice, 86; Proffat on Juries, 51; Const. 1849, art. I, sec. 8; Const. 1879, art. I, sec. 8; Sutherland on Statutory Construction, 391, 394, 395; Sedgwick's Statutory and Constitutional Law, 323, and note; State v. Maze, 6 Humph. 17.) A presentment is not a complaint, and cannot take the place of one. (Ex parte Citizens' Assn ., 8 Phila. 479; 4 Blackstone's Commentaries, 301; Wharton's Criminal Practice and Procedure, sec. 86; Archbold's Criminal Procedure, Pomeroy's ed., 322; Thompson and Merriam on Juries, 657; Bishop on Criminal Procedure, 131-40; Harris' Criminal Law, 260; Story on the Constitution, 1784; Bouvier's Law Dictionary, tit. "Presentment"; Penal Code, sec. 916.)
A. Ruef, for Appellant.
William S. Barnes, District Attorney, for Respondent.
JUDGES: In Bank. Harrison, J. Temple, J., McFarland, J., Henshaw, J., Beatty, C. J., and Van Fleet, J., concurred.
OPINION
HARRISON, Judge
[42 P. 445] A grand jury that had been impaneled in the superior court for the city and county of San Francisco presented to that court the following document:
" The people of the state of California against A. Grosbois, in the superior court of the city and county of San Francisco, state of California, the sixth day of March, a. d., eighteen hundred and ninety-five.
" A. Grosbois is accused by the grand jury of the said city and county of San Francisco by this presentment of the crime of misdemeanor, to wit, renting houses for the purposes of ill-fame, committed as follows [describing the acts constituting the misdemeanor], contrary to the form, force, and effect of the statute in such case made and provided, and against the peace and dignity of the people of the state of California.
" William S. Barnes, "District Attorney.
" By A. P. Black, "Assistant District Attorney. " Names of witnesses examined, and the names of witnesses whose depositions were read before the grand jury on finding the foregoing presentment.
" James Gillin, "John B. Martin."
The document was indorsed as follows:
" Presentment for misdemeanor, to wit: Renting houses for the purposes of ill-fame. A true bill.
" W. H. Gagen, "Foreman Grand Jury.
The court ordered the document to be filed with the clerk, and thereupon a bench warrant was issued, and the petitioner having been arrested by the sheriff thereunder, has sued out a writ of habeas corpus to test the legality of his arrest.
It will be observed that the document which was presented to the superior court by the grand jury conforms in all respects, except in name, to the requirements of an indictment, and except that it is designated a presentment in the body of the indictment, and is so indorsed, it has none of the characteristics of a presentment. A presentment is defined in section 916 of the Penal Code, as follows: "A presentment is an informal statement in writing by the grand jury, representing to the court that a public offense has been committed which is triable in the county, and that there is reasonable ground for believing that a particular individual, named or described therein, has committed it." The present document is, however, a formal accusation by the grand jury, charging the defendant with a public offense. It is signed by the district attorney, instead of the foreman of the grand jury, the names of the witnesses examined are indorsed thereon, and it is also indorsed "a true bill" by the foreman of the grand jury. It is prepared upon a printed form for an indictment, and where the word "indictment" is printed therein, it is erased, and the word "presentment" is written over the same. This change is indicated by the italicised words above. It is not necessary, however, to determine whether this document can be regarded as a presentment, since we are of the opinion, from other considerations, that the action of the grand jury was unauthorized.
The chief distinction between an indictment and a presentment at common law was that the former was made at the suggestion of the crown, while the latter was made upon the knowledge of one or more of the jurors, and instead of being indorsed "a true bill" by the foreman alone, was signed by all of the jurors. Blackstone defines a presentment as "the notice taken by a grand jury of any offense from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king." (3 Blackstone's Commentaries, 301.) 2 Hawkins Pleas of the Crown, chapter 25 (1), says: "An indictment is an accusation at the suit of the king, by the oath of twelve men of the same county wherein the offense was committed, returned to inquire of all offenses in general in the county, determinable by the court into which they are returned, and finding a bill brought before them to be true. But when such accusation is found by a grand jury, without any bill brought before them, and afterward reduced to a formal indictment, it is called a presentment." Mr. Justice Field, in a charge to the grand jury (3 Saw. 678), says: "A presentment differs from an indictment in that it wants technical form, and is usually found by the grand jury upon their own knowledge or upon the evidence before them, without having any bill from the public prosecutor. It is an informal accusation, which is generally regarded in the light of an instruction upon which an indictment can be framed. This form of accusation has fallen in disuse since the practice has prevailed, and the practice now obtains generally, for the prosecuting officer to attend the grand jury and advise them in their investigation." (See, also, Case of Lloyd, 3 Clark, 188; State v. Darnal, 1 Humph. 292; Wharton's Criminal Pleading, sec. 86.) The constitution of 1849, article I, section 8, authorized a presentment by a grand jury as a part of the procedure for holding persons to answer for public offenses, and the Criminal Practice Act that was enacted in pursuance of that provision (Stats. 1851, p. 212) provided [42 P. 446] for the finding of a presentment by a grand jury and the proceedings thereon. Under that constitution the court of sessions had jurisdiction to inquire by the intervention of a grand jury of all public offenses committed or triable in its county. In 1862 the court of sessions was abolished by an amendment to the constitution, and the county court was invested with such criminal jurisdiction as the legislature might prescribe, and the district court was given jurisdiction in all criminal cases not otherwise provided for. Under these constitutional provisions the legislature was authorized to prescribe the finding of a presentment, as well as an indictment, as a part of the duties of a grand jury, and the Criminal Practice Act was intended to confer this authority. These provisions of the Criminal Practice Act in reference thereto were incorporated in the Penal Code upon its adoption in 1872. The constitution of 1879, however, omits all reference to a presentment as a mode of charging a person with a public offense, and the provisions of the Penal Code upon that subject that had been adopted with a view to the provision of the previous constitution thereupon ceased to have any practical operation.
That the action of the grand jury in the present case was unauthorized further appears upon a consideration of the action required of the magistrate after the defendant has been examined. Section 872 requires him to hold the defendant to answer, if it appears from the examination that an offense has been committed and that the defendant is guilty, and section 883 requires him, upon holding him to answer, to return the warrant and depositions "to the clerk of the court at which the defendant is required to appear." The object of section 872 is that the defendant be held to answer, and when so held he must, by section 809, be proceeded against by information or indictment. The provisions of section 682, however, that "every public offense must be prosecuted by indictment or information, except. .. . 3. Offenses tried in justice's and police courts," is equivalent to a declaration that offenses tried in justice's and police courts are not to be prosecuted by indictment or information; and section 1426 declares that "all proceedings and actions before a justice's or police court for a public offense of which said courts have jurisdiction must be commenced by complaint under oath, setting forth the offense charged, with such particulars of time, place, person, and property as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the complaint." As the superior court has no jurisdiction to try a misdemeanor, and as there is no provision for a justice's or police court to try any offense prosecuted by indictment or information, it is clear that, under the present system there is no function for a presentment by a grand jury, and no authority for the arrest of a person charged in that form with the commission of a public offense.
The petitioner is discharged.