Ex parte Haymond , 91 Cal. 545 ( 1891 )

The Court.

The petitioner was subpoenaed as a witness before the grand jury of San Francisco. He refused to appear and testify, upon the ground that, in his opinion, the grand jury was not a lawful body. For this refusal he was convicted of a contempt of the superior court, and sentenced to fine and imprisonment. Thereupon he sued out this writ, under which he prays to be discharged from custody.

It is not controverted that he must be remanded and the writ discharged, unless he can show that the superior court exceeded its jurisdiction in the contempt proceeding.

In order to do this, petitioner offered in evidence the record of the proceedings of the superior court in ordering, selecting, summoning, and impaneling the alleged grand jury, from which he contends that it appears the superior court was guilty of such grave irregularities and violations of plain statutory provisions that the body of men by it sworn and impaneled is not even a de facto grand jury. Without passing upon the question whether the grand jury before whom the petitioner was summoned to appear was impaneled in accordance with the provisions of the law relating to that subject, it is sufficient for us to say that such body has certainly a de facto existence, and this being so, the witness was clearly guilty of contempt in refusing to testify.

When a court having legal authority to impanel a grand jury has sworn and impaneled a competent number of persons as such, and itself recognizing the body so formed as a lawful grand jury, charges it with the duties of a grand jury, and it is engaged - in the performance of such duties, a person summoned to testify before it cannot raise the question of its competency to act. His duty is to testify as required, leaving the question of the legality of the grand jury to he tested in the modes provided by law by those who may have an interest in the question.

The petitioner, on his own showing, has been regularly and properly convicted, and must be remanded.

Writ discharged, and prisoner remanded.