People v. McGuire , 32 Cal. 140 ( 1867 )

By the Court, Sanderson, J.:

The defendant was indicted in the County Court of the County of Tulare for the crime of murder. He was tried and convicted of the crime of murder in the first degree in the District Court of the Thirteenth Judicial District, sitting in and for the County of Tulare.

After verdict he moved in arrest of judgment upon the grounds: First, That the County Court of the County of Tulare had no jurisdiction of the alleged offense for the purposes of indictment; and Second, That the District Court of the Thirteenth Judicial District, sitting for the County of Tulare, had no jurisdiction of the indictment for the purposes of the trial.

This motion was denied.

The defendant then moved for a new trial upon the ground that certain errors of law were committed during the progress of the trial.

This motion was also denied.

We shall find occasion to review the former motion only. The grounds of the motion in arrest of judgment are substantially as follows: On the 2d day of April, 1866, the Legislature passed “ An Act to create the County of Kern, to define its boundai'ies and to provide for its organization.” (Statutes 1866, p. 796.) This Act contains no provision as to the time when it shall take effect, and therefore, under the general statute in relation to that subject, it took effect sixty days after its passage, to wit, on the 1st day of June, 1866. It creates the County of Kern out of territory which belonged in part to the County of Tulare and in part to the County of Los Angeles. For the purpose of organizing the county, it directs that immediately after the Act shall be in force the Governor shall appoint some suitable person as County Judge (Sec. 7), and that the other county officers shall be elected at an election to be held on the second Thursday in July, 2866, which was the twelfth day of the month. (Sec. 4.) It creates a Board of Commissioners, who are empowered and required to establish precincts and appoint officers of election, and to canvass the election returns and declare the result, and to commission those who have been elected. (Secs. 5 and 6.) For the purpose of canvassing the returns the Board are required to convene on the tenth day after the election. (Sec. 6.) Within ten days after receiving their certificates of election the officers are required to qualify before the County Judge, and thereupon enter upon the discharge of their respective duties. (Sec. S.) For the purposes of representation in the Assembly the county is attached to the County of Tulare, and for the purposes of representation in the Senate, to the Fourth Senatorial District. For judicial purposes it is attached to and made a part of the Thirteenth Judicial District. (Sec. 11.)

On the same day, to wit, the 2d of April, 1866, another Act was passed “to create the Sixteenth Judicial District.” (Statutes 1865-66, p. 863.) Although approved on the same day this Act was framed, and introduced in the Legislature subsequent to the Act to create Kern County, which is apparent from the fact that it treats of Kern County as already established, it provides that the Counties of Alpine, Mono, Inyo, and Kern shall compose the Sixteenth Judicial District. (Sec. 1.) That suits brought and matters pending in the District Courts for those counties shall be heard and determined in the District Court for the Sixteenth Judicial District. (Sec. 2.) That a District Judge shall be appointed and commissioned by the Governor immediately after the passage of the Act. (Sec. 5.) That the terms of the Court shall commence on the first Mondays of June and December of each year. (Sec. 3.) And lastly, that the Act shall take effect from and after its passage. (Sec. 8.)

The offense is charged in the indictment as having been committed on the 16th of May, 1866, at the County of Tulare. The record shows that if was committed at the Town of Havilah, which was in Tulare County prior to the creation of Kern County, but is now the county seat of the latter county. The indictment was found on the 6th of July, 1866, and, by order of the County Court, transmitted on that day to the District Court of the Thirteenth Judicial District for the County of Tulare, where it was subsequently tried at the October term, 1866.

The first question is, when did Kern become a county ? We answer, when its organization was perfected, on or about the 1st of August, 1866, and not before. It did not become a county on the 2d of April, because the Act was not to take effect until sixty days thereafter, to wit: the 1st of June. It did not become a county at the latter date because the whole tenor and scope of the Act shows that the Legislature could not have intended that the territory included in the boundaries described in the statute should become a county until organized by the election and qualification of such officers as are required to administer the county government. The first section, which creates the county, does not speak in the present tense but in the future. The language is, “ there shall be formed,” etc. Thereafter the Act proceeds and directs how the county is to be formed. So far as defining its boundaries are concerned the Act itself forms the county, but so far as its organization is concerned, it merely directs how it shall be accomplished. To constitute a county something more is required than to define its boundaries. A local government must be provided, and the creation of the county is not accomplished until both these things have been done in the appointed mode. To hold otherwise would lead to very absurd consequences. It would place the people and property within the territory of the proposed county wholly without the pale of the Government, and erect a place where, in the forcible language of the Attorney-General, “ there would be neither civil nor criminal law; where crime would go unpunished and criminals hold high carnival.” The Legislature could not have intended such consequences, and there is nothing in the statute which stands in the way of a different and more rational conclusion. (21 Cal. 415.)

The next question is, when organized, of which Judicial District did Kern County become a part—the Thirteenth or the Sixteenth ? We answer, the latter. Although both Acts were approved on the same day, yet it is clear that the Act creating the Sixteenth Judicial District contains the latest will of the Legislature; besides, the assignment of Kern County to a particular Judicial District was not the main purpose of the Act creating the county, but an incident which ordinarily would be provided for in the Act dividing the State into Judicial Districts, and under the present circumstances, in the Act creating the Sixteenth Judicial District. The former Act is specially and mainly devoted to the creation of the county, and the latter with the creation of the district. Where such is the case each Act must furnish the rule applicable to its main purpose, because it must be presumed that the attention of the Legislature was therein more especially called to that branch of the general subject. (Dobbins v. The Board of Supervisors of Yuba County, 5 Cal. 414.)

From what has been said thus far it follows that there was no County of Kern at the time this offense was committed, nor at the time the indictment was found, and hence the County Court of Tulare had jurisdiction of the case for all the purposes of indictment. Before the defendant was tried, however, Kern County had been organized and become in all respects a separate jurisdiction, and in our judgment the jtirisdiction of the District Court of the Thirteenth Judicial District for Tulare County over this case then ceased and determined, and that Court ought to have transmitted the case to the District Court of the Sixteenth Judicial District for Kern County, pursuant to the provisions of the second section of the Act creating that district. The case may not come directly within the letter of that section, for it cannot be said, strictly speaking, that the case was pending in the District Court of Kern County at the time that Act was passed, but it would have been, had that county, as assumed by the Legislature, been then organized, and comes, we think, within the true intent and meaning of the Legislature.

The judgment is reversed and the Court below directed to transmit the case to the District Court of the Sixteenth Judicial District for the County of Kern for trial.