Mitchell v. Superior Court

This is an application by the petitioner against the respondent as the Superior Court to obtain a writ of mandamus. Among other things the petitioner alleged that on the twenty-second day of December, 1925, the grand jury of Fresno County returned an indictment against him; that on December 31, 1925, the petitioner was arraigned and at said time he demurred to the indictment; that thereafter, on the fourth day of January, 1926, the court made an order “that the demurrer be and it is hereby sustained and that the matter be submitted to the present grand jury”; that no amendment of said indictment was sought and no amendment was allowed; that on January

Before taking up the provisions of the statute it is necessary to bear in mind certain historical matters none of which may be questioned and yet all of them throw much light on provisions of the statute that is particularly before us.

[1] At common law an indictment, being the finding of a grand jury upon oath and depending upon this fact, among others, for its validity, cannot be amended by the court or the prosecuting officer in any matter of substance without the concurrence of the grand jury which presented it.

[2] The use of an information as an accusation in a felony ease did not exist at common law. In 1850, and continuously since, the law has provided that when the trial court sustains a demurrer to an indictment, the court can order the case resubmitted. "Whether the particular offense was prosecuted by indictment or by information the power of the trial court or of the prosecuting officer to amend it was not by express language conferred prior to the year 1911. However, commencing with the year 1880 legislation has been adopted for the purpose of preventing an entire miscarriage of justice because of defects in pleading. [3] At the present time, giving full allowance to all of the new statutes, an indictment cannot be amended so as to change the offense charged, or an information so as to charge an offense not shown by the evidence taken at the preliminary examination. An indictment or information may be amended within above limits by the district attorney without leave of court, at any time before the defendant pleads. Such amendment within above limits may also be made at any time thereafter, in the discretion of the court, where it can be done without

[5] The record before us does not disclose what was claimed to be the defect in the first indictment filed against the petitioner. However, from the allegations of the petition it appears that no amendment was asked or allowed. We may assume, therefore, that the defect, if any, was at least claimed to be one which went to the substantial rights of the defendant. This assumption is fortified by the terms of the order sustaining the demurrer and which directed the case to be submitted to the grand jury. The court was therefore considering an instance where in its judgment a change was necessary but which change, if made, was one of those changes which must be made with the authority first obtained from the grand jury. The court was considering a new indictment, not an amendment. To such a change the petitioner would apply that sentence contained in the section which reads as follows: “If a demurrer is sustained and an amendment is not allowed, .or if allowed, is not made, within such reasonable, time as the court may fix, the court shall give a judgment of dismissal, which shall be a bar to another prosecution for 'the same offense.” That sentence standing alone is limited to amendments and not to new indictments and is not helpful under the facts of this case. However, we think that the remaining portion must also be applied. It is as follows: “The defendant shall thereupon be discharged, unless the court directs the case to be submitted to the same or another grand jury, or directs a new information to be filed; provided that after such order or resubmission, the defendant may be examined before a 'magistrate, and discharged or committed by him, as in other cases.” The whole section must be so interpreted as to give some force and effect, if possible, to each and every clause therein contained. The very purpose of the amendments to the section was to prevent miscarriages of justice—not to create them. The section clearly provides that in a proper case it will be the duty of the trial court to direct the case to be submitted to the same or another grand jury, or to direct a new information to be filed. The contention made by the peti

In short, the position of the petitioner rests on the assumption that the phrase “unless the court” limits the antecedent ‘ ‘ discharged. ’ ’ In this behalf the petitioner confidently asserts the statute is so punctuated. [6] The vice of his position rests on the conclusion that punctuation is a cardinal rule of interpretation. It may be of assistance, but punctuation does not necessarily control in interpreting a statute. In French v. Teschemaker et al., 24 Cal. 518 , commencing on page 553, Mr. Justice Sanderson, speaking for the court, said: “To construe a statute, is to search after the legislative intent as expressed in the language of the statute. ‘The end of construction is to find what was the intent and meaning, and to clear up that meaning, when obscure; to ascertain the sense of ambiguous words; to determine the design when imperfectly expressed. ’ (Smith’s Commentaries, 692.) The search, if need be, must not be confined to the doubtful passages, or words, but^nay be extended to every provision of the act. In interpreting the letter of the statute, punctuation may be entirely disregarded, and the rules of grammar need not be strictly followed. . . . Statutes are to be read without breaks or stops, and we have therefore omitted the punctuation. The foregoing is but one clause, and has but one subject, viz.: exemption from personal liability. In order to get its full meaning, we read all that is said upon that subject, aided by the legal presumption that no word is idle or useless, and that each has its office to perform in giving expression to the legislative intent; . . . And so in City of Covington v. McNickel’s Heirs, 18 B. Mon. (Ky.) 286, say the Court of Appeals of Kentucky: ‘A well known rule for the construction of statutes—which, though ancient, is always adhered to—is that the general words in one clause of a statute may be restrained by the particular words in a subsequent clause of the same statute. ’ (See, also, Dwarris on Statutes, 765.) ”

In People v. Sassovich, 29 Cal. 480 , on page 483, the same able jurist, speaking for the court, said: “A qualifying phrase does not always bear relation to a single word, noun or pronoun, as its antecedent; on the contrary it may, and frequently does, have another phrase or sentence as its object of relation. Treating the question, then, as a question in

In Randolph v. Bayue, 44 Cal. 366 , at page 369, Mr. Justice Rhodes, speaking for the court, said: “The first section of the Act of 1868, is in the same words as the first section of the Act of 1850, except that the word ‘seven’ is inserted in the Act of 1868 in place of the word ‘ten,’ in the Act of 1850; but in the Act as printed in the statutes of 1867-8, semicolons are in two places inserted where commas are found in the Act of 1850. These are obviously clerical or typographical errors; but if such were not the case, the punctuation would not be permitted to have the effect to render the statute absurd.”

In Joseph B. Dunn & Sons v. Brager, 116 Md. 242 [ 81 Atl. 516 , at page 519], the supreme court of Maryland stated its conclusion and the reasons therefor as follows: “This purpose will be made clear by striking out the period after the word ‘counties,’ changing the capital ‘E’ in the word ‘every’ to a small ‘e,’ and inserting a comma after the word ‘same.’ The period and the capital ‘E’ following break into two sentences what was evidently designed to be one sentence, and destroy what would otherwise be the clear meaning of the language used. Almost the identical change now proposed was made in Manger v. Board of Examiners, 90 Md. 659 [ 45 Atl. 891 ], Judge MeSherry saying: ‘Neither bad grammar nor inaccurate punctuation can alter the obvious sense of a legislative enactment. This is necessarily so. The statutes in England are not punctuated in the original rolls; but more or less marks of punctuation appear in them as printed, by authority. With us, the punctuation is the work of the draftsman, the engrossers, or the printers. In the legislative body, the bills are read, so that the ear, not the eye, takes cognizance of it. Therefore the punctuation is not, in either country, of controlling effect in the interpretation.’ The same view is held by other courts of high standing. In Martin v. Gleason, 139 Mass. 183 [ 29 N. E. 664 ], the court said, ‘Punctuation may sometimes be properly disregarded.’ In Gyger’s Estate, 65 Pa. 311 , Judge Sharswood said, ‘No punctuation ought to control a statute,’ and in Randolph v. Bayue, 44 Cal. 366 , the court said,

Being guided by the foregoing rules, the latter half of section 1008 of the Penal Code should be read as though it were worded as follows: “If a demurrer is sustained and an amendment is not allowed, or, if allowed, is not made, within such reasonable time as the court may fix, the court shall give a judgment of dismissal, which shall be a bar to another prosecution for the same offense, and the defendant shall thereupon be discharged, unless the court directs the case to be submitted to the same or another grand jury, or directs a new information to be filed; provided that after such order of resubmission, the defendant may be examined before a magistrate, and discharged or committed by him as in other cases.” So construing the statute it is clear that the petitioner was not entitled to have any dismissal entered as of the date he made his motion.

The writ is denied.

Nourse, J., and Langdon, P. J., concurred.

A petition by a petitioner to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 29, 1926.