Opinion
Hearing Granted by Supreme Court April 19, 1928.
Appeal from Superior Court, San Diego County; Edwin F. Hahn, and S. M. Marsh, Judges.
Chester C. Kempley and C. G. Shelleck were convicted of having solicited and accepted a bribe, and they appeal. Reversed, with directions that the indictment be set aside. COUNSEL
Dempster, McKee, Adam Thompson, and Edgar A. Luce, all of San Diego, for appellants.
U.S. Webb, Atty. Gen., John W. Maltman, Deputy Atty. Gen., and W. A. Sloane, E. J. Kelly, and Fred A. Steiner, all of San Diego, for the People.
OPINION
CRAIG, J.
Appellants were convicted in the superior court of San Diego county, Hon. Edwin F. Hahn presiding at the trial, of having solicited and accepted a bribe. They were charged by indictment with having asked and received a bribe upon representations and promises that they could and would by suppressing evidence aid in procuring acquittals of four persons who had previously been indicted for murder.
The indictment consists of two counts, in each of which it is alleged that appellant Kempley was on or about March 20, 1925, the district attorney of San Diego county, California, and that appellant Selleck was a deputy district attorney of said county. In the first count it is charged that appellants on the date above mentioned solicited and received from one William R. Johnson a bribe of $40,000, for promising, representing, and agreeing to obtain possession of, alter, and withhold from the jury, to be selected upon the trial of Thomas A. Johnson and Hugh McGovern for murder, certain material evidence, including a confession; that at the close of the trial they would cause the court to order delivered to counsel for Johnson and McGovern all exhibits in the case, so that Mae Johnson and Dan McGory, their codefendants, could not be convicted, if apprehended; that appellants herein then and there represented that they had sufficient in their possession to obtain the conviction and execution of all four defendants, and that, unless the $40,000 should be paid, they would "certainly be hanged for the murder of said George McMahon."
The second count is based upon the same set of facts, and also alleges that appellants as such public officers did receive a bribe of $40,000 upon an agreement and understanding that their actions would be influenced in favor of said four defendants; that the murder charges against the defendants Johnson and McGovern thereafter came on for trial, at which time Kempley and Selleck, as such district attorney and deputy district attorney, withheld from the jury the evidence mentioned; that Johnson and McGovern were acquitted, and that in furtherance of said unlawful agreement and understanding, and in order to prevent the trial and conviction of Mae Johnson and McGory, the prosecuting officers filed a written motion, praying that all exhibits introduced by the people be delivered to counsel for the defendants.
Before the trial appellants herein moved the court, before S. M. Marsh, a judge thereof, for an order setting aside the indictment, basing their motion upon three grounds: (1) That it was not found, indorsed, or presented as prescribed by the Penal Code, in that it was not voted, passed upon, or concurred in by 12 grand jurors; (2) that the names of witnesses examined before the grand jury, and of witnesses whose depositions were read to the grand jury, were not inserted at the foot of, nor indorsed upon, the indictment; and (3) that certain persons, other than those authorized by section 925 of the Penal Code to appear before the grand jury, were present during its sessions, when the charges embraced in the indictment were under consideration.
The most serious charge presented by appellants’ motion to set aside the indictment is that the grand jurors were active in employing detectives to obtain evidence against the defendants; that they furnished their own funds therefor, personally talked to prospective witnesses, formed fixed opinions, which they expressed, as to the defendants’ guilt, and, in effect, thus procured their indictment, prosecution, and conviction. The secretary of the grand jury was sworn, and while he was on the stand objections of the special prosecutor to certain questions bearing upon the evidence before the grand jury were sustained, whereupon the court suggested that the defendants make an offer of proof.
Counsel for the defendants accordingly offered, and requested that they be permitted, to show the following alleged facts: That prior to the appointment of any special counsel, and prior to the first regular meeting of the grand jury, certain members of that body who thereafter participated in the deliberations, personally interviewed witnesses for the prosecution, expressed opinions concerning the case, and with their own and solicited funds, employed detectives to obtain evidence against the defendants; that, through detectives and political enemies of the defendants, members of the grand jury offered assistance, comfort, and support to one Agnes Keller, the principal witness for the people, then confined in the penitentiary, and promised to procure her release if she would assist the prosecution; that a campaign manager of Kempley’s former opponent for the office of district attorney, with the approval, knowledge, and consent of certain grand jurors, promised Agnes Keller her release, if she would assist the detectives employed by the grand jurors; and that at least two of the grand jurors had stated, before they heard any evidence, that they would indict them. It was further offered that defendants would, if permitted to do so, prove that a clear majority of the grand jurors were disqualified by the acts and statements specifically offered to be proved, so that 12 of the 16 jurors who returned the indictment were without the authority or qualification to participate. Hence it was urged that the indictment was not found, indorsed, or presented as prescribed by the Penal Code, to wit, by 12 grand jurors.
Appellants assert that, had they been permitted to do so, they could have proven all of the foregoing gross irregularities, and that they could have shown thereby that about three-fourths of the 16 grand jurors were disqualified. However, the objection of the prosecution that all of the evidence and proof thus offered was irrelevant, incompetent, and immaterial, was sustained. Of course, for the purposes of passing upon the ruling on the offer of proof, it must be assumed that the facts contained in it are true. The respondent insists that, since the amendment of section 995 of the Penal Code, in 1911 (St. 1911, p. 435), a defendant may not set aside an indictment upon certain grounds which were at that time eliminated; that the right to challenge grand jurors was abolished. Hence it is argued that, the Legislature having eliminated as ground for quashing an indictment those to which reference is above made, even if all of the offered evidence were admitted as true, it would not justify an order granting the motion to set aside the indictment in this case under existing California laws.
We think it is obvious that, under section 995, subdivision 1 of the Penal Code, if a grand juror should in fact be not qualified to act, his attempted act would be void, and if a sufficient number of grand jurors be so disqualified as to leave less than 12 of the body without power to present any person for a criminal offense, an indictment returned by such a grand jury would be invalid and ineffectual. It was so held in People v. Lensen, 34 Cal.App. 336, 167 P. 406, wherein an indictment returned by a grand jury consisting of 11 men and 8 women was involved. This was prior to the Act of May 29, 1917 (Stats. 1917, p. 1282), empowering women to serve upon such inquisitorial bodies. The opinion quotes with approval from State v. McClear, 11 Nev. 39, 46, as follows:
"‘Jury,’ as the term is used in the clause of the Constitution providing that the right of trial by jury shall not be denied, ‘means 12 competent men, who are free from all ties of consanguinity, and all other relations that would tend to make them dependent on either party. It means 12 men who are not interested in the event of the suit and who have no such bias or prejudice as would render them partial towards either party."’ (Italics ours.)
It was held that as the statute then read, the indictment was void and should be set aside, because not found as prescribed by law, in that it was not returned by 12 qualified grand jurors. It is impossible to consider the sections of our Penal Code providing for the formation, powers, duties, and conduct of grand juries, and the exercise of their jurisdiction to indict, without recognizing that the entire plan is permeated with the principle requiring utmost secrecy of the proceedings, and the maintenance of every other possible safeguard to protect jurors from all taint of bias, and to insure freedom from partisanship or prejudice in their official acts.
Section 940 of the Penal Code negatives the possibility of an indictment being returned, except by the concurrence of 12 jurors. This, of course, means 12 jurors qualified to act as such. It is provided that a grand jury will "present no person through malice, hatred, or ill will"; they must "retire to a private room and inquire into the offenses cognizable by them"; and "before considering a charge against any person, the foreman of the grand jury shall state to those present the matter to be considered and the person to be charged with an offense in connection therewith, and direct that any member of the grand jury who has a state of mind in reference to the case or to either party which will prevent him from acting impartially and without prejudice to the substantial rights of the party to retire." Pen. Code § § 903, 906, 907. In People v. Brown (Cal.App.) 253 P. 735, unwarranted interest and unauthorized activities of grand jurors, which tend rather to instigate and foster prosecutions than to impartially inquire into alleged offense, were indicated to be in contravention of section 919 of the Penal Code, wherein the reception of "other evidence than such as is given by witnesses produced and sworn before them, or furnished by legal documentary evidence, or by deposition," is prohibited. In People v. Bright, 157 Cal. 663, 109 P. 33, the Supreme Court held that the word "consideration," contained in section 900 of the Penal Code, meant the investigation of the charge, and that a disqualified grand juror has not the right to participate even in the investigation.
Section 919 of the Penal Code limits the evidence which may be received by a grand jury to that given by witnesses produced and sworn before them, or furnished by legal documentary evidence, or the deposition of a witness in certain cases, and the same Code, in section 925 thereof, designates who, and who only, may appear before the grand jury. In this section also is contained the provision authorizing the Attorney General under the circumstances therein stated to employ special counsel and special investigators "to investigate and present the evidence in such investigations to the said grand jury." These Code provisions all have to do with the manner in which indictments are found. Hence substantial violations of their provisions are grounds for setting aside an indictment thus illegally returned. Assuming the truth of the facts offered to be proved, a comparison of them with the provisions and inhibitions contained in the sections of the Code above mentioned establishes gross and flagrant infractions of the law in this behalf.
We agree with the reasoning in the opinion in Wm. J. Burns International Detective Agency v. Doyle, 46 Nev. 91, 208 P. 427, 26 A. L. R. 600, which seems incontrovertible, and from which we quote:
"The allegation negatives the idea that plaintiff was employed to investigate the commission of crimes generally, but that its activities were limited to particular offenses. The inference deducible from this language is that it was especially desirable to fix the liability for certain offenses. That purpose was so earnestly desired that the defendants were willing to obligate themselves for a large outlay. Is it possible for frail human nature to lend its support to the ferreting out a crime without being influenced in reaching a conclusion as to the guilt or innocence of the party? We think not. Would any one be so audacious as to say that a detective who has been active in investigating an alleged crime could be an impartial grand or petit juror? The inquiry suggests the answer. One who furnishes the money to induce the activity of a detective in such an inquiry is but slightly, if any, less liable to be prejudiced. In fact, the detective is working for the reward, and is paid for his services, regardless of results, whereas the one who puts up the money to induce the activity of the detective is in a position to use his influence to get the results he hopes for. His only reward is in finding a victim. Is he likely to be impartial toward the one who is the fruit of his own activity? A knowledge of human nature answers, ‘No.’ The experiences of the ages answer, ‘No.’ The words of St. Luke, ‘Where your treasure is, there will your heart be also,’ state a truism. An agreement on the part of grand jurors to finance an investigation of a particular offense inexorably prejudices them as impartial and unbiased members of the grand jury. Such a contract not only tends to create prejudice, but, unless the persons so agreeing are superhuman, it is safe to say that it in fact has that effect." And quoting from Burns Detective Agency v. Holt, 138 Minn. 165, 164 N.W. 590, it is further said:
"‘*** Moreover, the finding of an indictment calls for the judgment of fair-minded, unprejudiced men. It is against the general consensus of opinion that ordinary men can act fairly and impartially when their purse has been placed on one side of the scale."’
But the defense in this case, upon the suggestion of the judge, offered to prove that certain members of the grand jury, from their own funds and funds which they solicited, paid the Firman detective agency to investigate the charges against them; that the number of grand jurors who took this action was such that there were not 12 who were not thus biased. No authority need be cited to support the patent proposition that even a public prosecutor would be subject to serious criticism should he attempt to secure evidence through unethical negotiations such as here charged against members of this grand jury, to wit: That certain members sanctioned and approved offers of aid being given to a witness then in the penitentiary to secure her escape from punishment which had been meted out to her if she would give information and assistance to the detective agency which these grand jurors employed. Further, the defendants offered to show that the grand jurors themselves furnished money, and attempted to bargain with the witness, and afterwards participated in the deliberations upon the indictment, and voted on it.
Had the defendants in this case been permitted to show that certain grand jurors, preceding and during the investigation of the charges, took into their own hands the functions both of sheriff and prosecutor, threatened the defendants with indictment, and sanctioned the offer of aid to freedom to a convicted felon in order to enlist her assistance in making a case against the officials who had previously prosecuted her, such evidence would undoubtedly have disqualified any member or members so imbued with interest, prejudice, or malice as to thus disregard the plain mandates of the Code. In the absence of a showing to the contrary, we must presume that the foreman performed his official duties in a lawful and regular manner, and directed that any partial or prejudiced juror retire. People v. Meraviglia, 73 Cal.App. 402, 407, 238 P. 794. This being the rule, it becomes obvious that, if legal and competent evidence were produced, as offered, the members affected would not only have been disqualified, but utterly unfit to participate in proceedings which vitally concern the rights of society and its constituents to consider and vote upon the charges before them in violation of their foreman’s statutory direction that they retire. As was said of laymen by the New York criminal court in an early case, we think may be said of grand jurors with equal force:
"Let any reflecting man, be he layman or lawyer, consider the consequences which would follow, if every individual could, at his pleasure, throw his malice or his prejudice in to the grand jury room, and he will necessarily conclude that the rule of law which forbids all communication with grand juries engaged in criminal investigations, except through the public instructions of courts and the testimony of sworn witnesses, is a rule of safety to the community. What value could be attached to the doings of a tribunal, so to be approached and influenced? How long would a body, so exposed to be misled and abused, be recognized by freemen as among the chosen ministers of liberty and security? The recognition of such a mode of reaching grand juries would introduce a flood of evils, disastrous to the purity of the administration of criminal justice, and subversive of all public confidence in the action of these bodies." People v. Sellick, 4 N.Y.Crim. R. 329.
Indeed, it is unthinkable that men under such compelling belief in the guilt of an accused person, or so filled with malice and hatred of him, as the case may be, as thus to finance a prosecution and participate in immoral bargaining for convicting evidence, should also assume the rôle of jurors, and pretend to fairly, impartially, and judicially weigh that same evidence. Yet the defendants’ offer of proof involved all of this, and much more.
If the defendants are innocent, irreparable injury has been done them through being forced to stand trial and having been pronounced guilty by a verdict of a trial jury of a serious felony, made possible by illegal procedure. If they are guilty, the rights of the public have suffered equally. Delays and retrials are known to almost invariably be of advantage to those charged with crime, and in many instances to result in their ultimate unmerited escape. All of these consequences follow from an apparent too great anxiety on the part of the prosecution to secure a verdict of conviction and a laxity in taking precautions against serious prejudicial error. Had the defense been permitted to make their proof of the astounding charges contained in their offer, and such accusations were found to be untrue, and the defendants found guilty, no question of escape of possible felons would now exist. Had the charges been found true, even the prosecution should have been the last to desire to proceed to trial upon an indictment so conceived in prejudice and born of malice.
In the matter of ferreting out crime, grand juries have no authority to hire detectives, or to receive evidence collected and produced by such agencies, except through the means and methods sanctioned by law. Section 925 of the Penal Code contains the only authority provided for the employment of investigators to procure evidence and place it before a grand jury. It does not cover the case here presented by the offer of proof. Grand juries should be advised of the legal limitations upon their authority. If they exceed these limitations, the court should not be hesitant in declaring such to be the case, and in thus protecting the rights of individuals violated thereby. It is not within the province of grand juries to prosecute. The judicial attitude and functions which are peculiarly theirs are wholly inconsistent with such advocacy of the guilt of a person accused of crime as evidenced by the acts of partisanship offered to be proved against the members of the grand jury which voted the indictment upon which this prosecution was founded.
The conclusion is inevitable that, had the appellants been permitted to introduce the evidence which they claimed to have, and had they been able to show that 11, or even 5, of the 16 grand jurors who indicted them were legally disqualified to participate in the proceedings, the indictment would necessarily have been set aside. Hence the refusal to permit them to do so was error, and a reversal is necessary.
Appellants assert many alleged errors, but upon a thorough and careful examination of the record we think the only points requiring special attention at this time consist of certain rulings upon alleged hearsay evidence and the appointment and acts of a special counsel designated by the attorney general.
The witness Agnes Keller testified at great length regarding visits to the district attorney’s office, at the solicitation of the defendants, and related conversations which she had with Selleck, or with Kempley, or both, regarding the Johnson-McGovern Case. It appears that one of the appellants herein made a trip to Chicago during the pendency of the murder case for the purpose of cross-examining certain witnesses upon the taking of depositions in that case; that he had interviews with William R. Johnson, a brother of the defendant Johnson, in Chicago. Mrs. Keller testified to the effect that upon visiting the defendants at San Diego she was informed by them that William R. Johnson had considerable means, and that he was expected in San Diego soon; that Johnson was anxious to clear his brother of the murder charge, and was desirous of obtaining certain exhibits, including a knife which had been taken from the body of McMahon, and which had been connected with a previous murder in Chicago; that the defendants instructed her to interview the coroner of San Diego county, obtain from him all information possible regarding any evidence which he might have, view the remains of McMahon, and report back to the defendants the result of her efforts; that she did as instructed, returned, and related the events and conversations, the latter of which she purported to quote in her testimony.
She further testified that appellant Selleck instructed her to arrange interviews with William R. Johnson upon his arrival at San Diego, to inform him of the evidence in possession of the authorities, and to propose to Johnson that for at least $10,000 being paid to each of four persons the knife and other evidence material to inevitable conviction would be suppressed, and an acquittal assured; that she arrange to introduce or connect Johnson with Coroner Kelly. This witness swore that she complied with all such instructions, and stated upon the stand the somewhat extensive conversations which she had, or claimed she had, and reported back to the defendants in this instance. There is much of the foregoing conversations which we need not here delineate, but it is sufficient to say that Mrs. Keller’s transactions and conversations with the various parties, to which she swore, and which the jury doubtless believed, were accomplished at the instance of one or the other, or both, of the appellants, embraced a complete and exhaustive scheme of connivance by Kempley, Selleck, Johnson, and the witness to solicit and collect a bribe, and to defeat justice, which the evidence also strongly tends to show was fully consummated.
Coroner Kelly, called as a witness for the people, testified that both Mrs. Keller and Johnson "tried to get hold of the exhibits," particularly the knife, and in other respects corroborated Mrs. Keller’s testimony in much detail. He was asked: "Q. Who was the first to make you an offer to pay for the delivery of these exhibits-Miss Keller or Mr. Johnson?" To which he answered: "A. Mr. Johnson." During his redirect examination, over objections that it was irrelevant, incompetent, and immaterial, hearsay, and not redirect examination, and upon consent of the court that the objections were understood as going to the entire testimony in that regard, the following evidence was given by the witness:
"He [Johnson] says, ‘My name is Johnson. I am from Chicago, and my brother is here charged with murder. You know it’s my brother on trial for murder. It’s my own flesh and blood, and I’ll go the limit for him.’ ‘Well,’ I said, ‘just what is it you want?’ And he says, ‘You have got this certain evidence, haven’t you?’ I says, ‘Yes.’ *** If I remember right, he was interested about the knife; wanted to know if I had the knife. I told him, ‘Yes; I had everything.’ *** And he wanted to know what the chances were to get it. And I says: ‘Well, I couldn’t turn that over to anybody. That’s evidence, and I will have to turn that in when the trial comes up.’ Well, he said, if I could see my way clear to turn it over, he would make it worth my while. And I told him I wouldn’t turn it over to anybody. He chatted there, nothing special; and he said, ‘Well, think it over, and I will get in touch with you again.’ And he called me twice on the telephone after that, and wanted me to meet him; but I told him there wasn’t any use of meeting him, that there wasn’t anything doing." It is insisted that the reception of such conversations, which admittedly occurred without the presence of either of the appellants, was prejudicial error. The instant case is in this respect so strikingly analogous to that of People v. Stokes, 5 Cal.App. 205, 89 P. 997, decided in this district, and in which a hearing by the Supreme Court was denied, that we need but quote the rule therefrom. In affirming a judgment of conviction of robbery, it was said:
"The first alleged error in the record to which our attention is directed was the ruling of the court in permitting the hotel clerk to state what was said by Kincaid upon the occasion of his paying for this room for Connolly’s use. It was and is now claimed by defendant that the evidence sought to be adduced by the question calling for this conversation was irrelevant, incompetent, and immaterial to any of the issues in the case; that the conversation did not take place in the presence of the defendant, and that there was no evidence introduced that tended to show any relation between Kincaid and defendant and Connolly, who was robbed. *** The same objection was interposed to like questions throughout the trial, and the rulings of the court were adverse to defendant. *** There were three alleged conspirators here, but it was Kincaid’s conduct, acts, and movements which were the subject of inquiry when the alleged errors were committed, and his conduct, conversation, and acts during the period covered by the inquiry were not only competent and material as tending to show the existence of a common design between him and the defendant to commit the robbery, but, at the same time, in case the jury found the conspiracy to be actually established, constituted evidence tending to establish defendant’s guilt."
The same rule is upheld in People v. Holmes, 118 Cal. 444, 50 P. 675, People v. Bentley, 75 Cal. 407, 17 P. 436, and People v. Fehrenbach, 102 Cal. 394, 36 P. 678. We find no error in the rulings below as to such evidence.
It is objected that certain photographs of the dead body of McMahon and other objects, introduced at the trial of the Johnson and McGovern Case, were erroneously admitted in the trial of the case at bar. They constituted a part of the exhibits in controversy, and obviously they were material and competent evidence.
It is contended that the special counsel, appointed by the Attorney General, was not legally qualified to perform the duties of a district attorney, and had no authority to appear before the grand jury. It is insisted that he took no oath of office, furnished no bond, and hence was not even a de facto officer; that, while the special counsel as a de facto officer might otherwise legally conduct criminal proceedings, the person who acted was disqualified by excessive personal interest in the prosecution, and had "no business in there at all under any circumstances." It appears that on August 19, 1926, the Attorney General addressed a letter to Mr. Richard Kittrelle, an attorney and counselor at law of Los Angeles county, designating and appointing him as a special counsel to represent the people of the state of California in proceedings pending before the grand jury of San Diego county, in which the district attorney of San Diego county was disqualified, and therein stated such appointment was made pursuant to the provisions of section 472 of the Political Code, and at the request of the grand jury of the county last mentioned. Mr. Kittrelle testified, and it is conceded, that he took no oath of office before presenting the case to the grand jury.
It has repeatedly been held that, while an officer elected or appointed to an office created by statute or constitutional provisions is required to take an oath and furnish bond, special counsel act for an officer, but not as such officer, and is not disqualified by the omission of the official oath or bond. State v. Viaux, 8 La.Ann. 517; State v. Buhler, 132 La. 1065, 62 So. 145; Clinton v. State, 58 Fla. 23, 50 So. 580; Lindsay v. State, 138 Ga. 818, 76 S.E. 369; State v. Cato, 116 La. 195, 40 So. 633; People v. Wright, 89 Mich. 70, 50 N.W. 792; State v. Taylor, 98 Mo. 240, 11 S.W. 570; Johns v. State, 88 Neb. 145, 129 N.W. 247; Martin v. State, 16 Ohio, 364. It is to be observed, further, that section 472 of our Political Code does not require that such appointees take an oath or furnish a bond.
As to his personal interest, Mr. Kittrelle testified that he consulted with detectives regarding his employment, and discussed the matter with 5 or 6 of the grand jurors; that he interviewed witnesses, examined them before the grand jury, and left the room upon every occasion when deliberations commenced; that subsequently the foreman telephoned him that an indictment had been voted, requesting that he prepare it; and that he drew the indictment, passed it to the grand jurors, and departed. He was asked as to whether or not he had interviewed witnesses outside the grand jury room, or had stated to the grand jury what he had learned, what his opinion was as to certain evidence, or that an indictment should or should not be returned against Kempley and Selleck. Upon objections by the prosecution the trial court excluded this evidence, and such rulings are assigned as prejudicial error. It has been held that a district attorney should refrain from expressing an opinion before the grand jury as to the effect or sufficiency of evidence, but the fact that he may have done so and that his opinion was acted upon by them, does not invalidate the indictment found. People v. Hatch, 13 Cal.App. 521, 109 P. 1097. And this is true, even though the opinion or information imparted be construed as evidence, and is incompetent. People v. Collins, 60 Cal.App. 263, 212 P. 701; People v. Schmidt, 33 Cal.App. 426, 165 P. 555.
Nothing further of any legal import appears which would tend to indicate that the special counsel utilized improper means of obtaining or introducing evidence in the case, and in the absence of a showing to the contrary it must be presumed that he used only proper means of obtaining information. People v. Ruef, 14 Cal.App. 576, 596, 114 P. 48, 54. It must be conceded that as a representative of the people, under his oath as a member of the bar and as an officer of the court, it was counsel’s bounden duty to investigate the case, to examine witnesses, and, if he believed a crime had been committed, to submit to the grand jury such evidence as, from his diligent and thorough research, he deemed to be competent and material. More especially is this true when serious charges of corruption in public office are preferred against the guardians of public justice, with whom repose the power and the obligation to protect the sacred rights of the state and of its constituents. Section 925 of the Penal Code vests in district attorneys the authority and duty to "appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable by them," and, since the special counsel appointed in this instance appeared in the capacity of a state officer (Sloane v. Hammond [Cal.App.] 254 P. 648), for the district attorney, or in his stead, he was clothed with all the powers of that office. We think, therefore, that Mr. Kittrelle did not disqualify himself, and was not an improper person before that body, under the inhibition of section 995 of the Penal Code.
It is unnecessary to consider and pass upon a number of points presented by the briefs, in which the evidence is reviewed and its weight discussed. No matter how strongly the evidence might indicate a defendant’s guilt, it would be our clear duty to uphold the law safeguarding, not only these defendants, but every citizen, from indictment resulting from prejudice and bias on the part of grand jurors. It must be apparent that if a guilty person may thus be indicted, and the indictment stand, the same result may confront one who is innocent.
The judgment and order denying a new trial are reversed, with directions that the indictment be set aside.
We concur: WORKS, P. J.; THOMPSON, J.