In re Kennedy

der which he is now held. The testimony introduced before the grand jury upon which the last indictment was found was, on demand of the district attorney, taken down and written out by a stenographer, under section 925 of the Penal Code as amended in 1897 (Stats. 1897, p. 204), which provides that the testimony should be so taken if the district attorney demands it, and that a copy of it shall be given to the defendant upon his arraignment. This testimony is made part of the petition in this present proceeding, and it is contended by petitioner that it is the same testimony that was given at the former trial, which was held by this court to be insufficient to support a verdict of guilty, and that therefore it was insufficient to justify the grand jury in finding a second indictment. And this is the sole ground on which the discharge of Kennedy is asked for on this present proceeding.

We think it clear that upon habeas corpus the sufficiency of the evidence before a grand jury to warrant an indictment is not a proper subject of inquiry. If it could be inquired into in this case it could be in any case, and the writ of habeas corpus would, for this purpose, be turned into a writ of review for the purpose of inquiring whether the grand jury committed an error reversible on appeal, and an entirely new field of litigation in criminal cases would be opened up, and few indictments would come to trial without this preliminary contest. But there is no such appeal, and no provision for reviewing the action of a grand jury in finding an indictment. Upon habeas corpus we can look only to the matters hereinbefore indicated; we cannot look to the sufficiency of the evidence on which it acted, for as to that matter its action is conclusive. There are no cases decided by this court which are directly in point, this being the first time, within our knowledge, where the validity of an indictment has been attacked upon mere ground of insufficiency of evidence to support it; although in People v. Tinder, 19 Cal. 539 ,^[4] it was held that for the purpose of determining whether an indicted party should be admitted to bail, the evidence taken before the grand jury could not be considered, and in Ex parte Sternes, 82 Cal. 245 , although the point was not necessarily involved, it is correctly stated in the opinion of Mr. Justice Fox that an indictment is a charge “made by a

judicial body, ’ ’ and that it is held so conclusive that for centuries, until an information was recently allowed in this state, all courts have been powerless to put a man on trial for a felony except upon indictment, “or to dismiss one without trial who had been in proper form so charged.” But in other jurisdictions the question has been directly raised, and we are satisfied that the law always has been and is as stated in Bishop on Criminal Procedure (sec. 872), that “the court cannot inquire into the sufficiency of proof, or the mode of examining witnesses, to invalidate an indictment.” (See State v. Boyd, 2 Hill (S. C.) 6;^[4] Smith v. State, 61 Miss. 759 ; Hight v. United States, 1 Morris, 407 ;^[3] United States v. Reed, 2 Blatchf. 437 ; Hammond v. State, 74 Miss. 214 , and cases there cited.) In United States v. Reed, 2 Blatchf. 437 , it is said: “No case has been cited, nor have we been able to find any authority for looking into and revising the judgment of the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof”; and in Hammond v. State, 74 Miss. 214 , it is said: “The doctrine appears to be general that the court cannot inquire into the sufficiency of the proof to invalidate an indictment. ’ ’ There are many other authorities to the same point. The statutes of the states where the decisions above referred to were made do not differ materially on the subject of grand juries and indictments from those of this state.

The fact that section 925 of the Penal Code now allows the district attorney, if he so desires, to have the testimony given before a grand jury taken by a stenographer, does not affect the rule as above stated. It is true that judges and text-writers when stating the rule have sometimes alluded to the secrecy of proceedings before the grand jury and the difficulty of proving what the evidence before a grand jury was; but the rule itself does not rest upon these considerations. An indictment is a record of the action of a judicial body, and such action is final when there is no appeal therefrom and no other method provided for revising it; and there is no method for revising it on the ground that there was not sufficient evidence to support it. The provision that a party who has been “committed” without probable cause may be

discharged refers to the preliminary commitment by a magistrate. (See Ex parte Sternes, 82 Cal. 245 .) The provision of section 925 is evidently for the benefit of the district attorney—probably for the purpose of preventing witnesses of a certain character from safely giving testimony before the trial jury different from that which they had given before the grand jury; but the district attorney need not have a stenographer before the grand jury, and clearly the provision does not change the rule as above stated. The provision of section 921 of the Penal Code that a grand jury “ought to” find an indictment upon certain evidence is “plainly only matter of advice to the jury.” (State v. Boyd, 2 Hill (S. C.) 6.^[4] ) The case of Ex parte Jenkins ( 2 Wall. Jr. 521 ), cited by petitioner, is not in point. That case involved a conflict between federal and state courts under the Fugitive Slave Law. A law of Congress provided that judges of. federal courts should have the power to issue writs of habeas corpus where prisoners were confined “on, or by any authority of law, for any act done or omitted to be done in pursuance of the law of the United States, or any order, process, or decree of any judge or court thereof.” In that case the prisoners were held under an indictment in the state court which merely charged them with riot and assault to kill, and contained no intimation that the parties indicted were officers of the United States and did the things alleged while acting in pursuance of an act of Congress; and the federal court merely held that the act of Congress could not be evaded by the artifice of an indictment in the state court which did not disclose the facts which brought the case within the operation of the law of Congress. That law included cases where federal officers were held under “any authority of law”—whether by the interposition of a grand jury or otherwise.

Said Kennedy is remanded to the custody of the sheriff and this writ is discharged.

Shaw, J., Angellotti, J., Van Dyke, J., Beatty, C. J., and Lorigan, J., concurred.