Hurtado v. People of the State of California

Citation110 U.S. 516,4 S.Ct. 111,28 L.Ed. 232
Decision Date03 March 1884
CourtUnited States Supreme Court

The constitution of the state of California adopted in 1879, in article 1, § 8, provides as follows: 'Offenses heretofore required to be prosecuted by indictment, shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county.' Various provisions of the Penal Code regulate proceedings before the examining and committing magistrate in cases of persons arrested and brought before them upon charges of having committed public offenses. These require, among other things, that the testimony of the witnesses shall be reduced to writing in the form of depositions; and section 872 declares that if it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, the magistrate must indorse on the depositions an order, signed by him, to that effect, describing the general nature of the offense committed, and ordering that the defendant be held to answer thereto. Section 809 of the Penal Code is as follows: 'When a defendant has been examined and committed, as provided in section 872 of this Code, it shall be the duty of the district attorney, within thirty days thereafter, to file in the superior court of the county in which the offense is triable, an information charging the defendant with such offense. The information shall be in the name of the people of the state of California, and subscribed by the district attorney, and shall be in form like an indictment for the same offense.'

In pursuance of the foregoing provision of the constitution, and of the several sections of the Penal Code of California, the district attorney of Sacramento county, on the twentieth day of February, 1882, made and filed an information against the plaintiff in error, charging him with the crime of murder in the killing of one Jose Antonio Stuardo. Upon this information, and without any previous investigation of the cause by any grand jury, the plaintiff in error was arraigned on the twenty-second day of March, 1882, and pleaded not guilty. A trial of the issue was thereafter had, and on May 7, 1882, the jury rendered its verdict, in which it found the plaintiff in error guilty of murder in the first degree. On the fifth day of June, 1882, the superior court of Sacramento county, in which the plaintiff in error had been tried, rendered its judgment upon said verdict, that the said Joseph Hurtado, plaintiff in error, be punished by the infliction of death, and the day of his execution was fixed for the twentieth day of July, 1882. From this judgment an appeal was taken, and the supreme court of the State of California affirmed the judgment. On the sixth day of July, 1883, the superior court of said county of Sacramento ordered that the plaintiff in error be in court on the eleventh day of July, 1883, in order that a day for the execution of the judgment in said cause should be fixed. In pursuance of said order, plaintiff in error, with his counsel, appeared at the bar of the court, and thereupon the judge asked him if he had any legal reason to urge why said judgment should not be executed, and why an order should not then be made fixing the day for the execution of the same. Thereupon the plaintiff in error, by his counsel, objected to the execution of said judgment, and to any order which the court might make fixing a day for the execution of the same, upon the grounds (7) that it appeared upon the face of the judgment that the plaintiff in error had never been legally, or otherwise, indicted or presented by any grand jury, and that he was proceeded against by information made and filed by the district attorney of the county of Sacramento, after examination and commitment by a magistrate of the said county; (8) that the said proceedings, as well as the laws and constitution of California, attempting to authorize them, and the alleged verdict of the jury, and judgment of the said superior court of said county of Sacramento, were in conflict with and prohibited by the fifth and fourteenth articles of amendment of the constitution of the United States, and that they were therefore void; (9) that the said plaintiff in error had been held to answer for the said crime of murder by the district attorney of the said county of Sacramento, upon an information filed by him, and had been tried and illegally found guilty of the said crime, without any presentment or indictment of any grand or other jury, and that the judgment rendered upon the alleged verdict of the jury in such case was and is void, and if executed would deprive the plaintiff in error of his life or liberty without due process of law. Thereupon the court overruled the said objections, and fixed the thirtieth day of August, 1883, as the time for the execution of the sentence. From this latter judgment the plaintiff in error appealed to the supreme court of the state. On the eighteenth day of September, 1883, the supreme court of the state affirmed the said judgment, to review which the present writ of error was allowed and has been prosecuted.

A. L. Hart, for plaintiff in error.

John T. Carey, for defendant in error.


It is claimed on behalf of the prisoner that the conviction and sentence are void, on the ground that they are repugnant to that clause of the fourteenth article of amendment to the constitution of the United States, which is in these words 'Nor shall any state deprive any person of life, liberty, or property without due process of law.' The proposition of law we are asked to affirm is that an indictment or presentment by a grand jury, as known to the common law of England, is essential to that 'due process of law,' when applied to prosecutions for felonies, which is secured and guarantied by this provision of the constitution of the United States, and which accordingly it is forbidden to the states, respectively, to dispense with in the administration of criminal law. The question is one of grave and serious import, affecting both private and public rights and interests of great magnitude, and involves a consideration of what additional restrictions upon the legislative policy of the states has been imposed by the fourteenth amendment to the constitution of the United States. The supreme court of California, in the judgment now under review, followed its own previous decision in Kalloch v. Super. Ct. 56 Cal. 229, in which the question was deliberately adjudged. Its conclusion was there stated as follows: 'This proceeding, as [it] is regulated by the constitution and laws of this state, is not opposed to any of the definitions given of the phrases 'due process of law' and 'the law of the land;' but, on the contrary, it is a proceeding strictly within such definitions, as much so in every respect as is a proceeding by indictment. It may be questioned whether the proceeding by indictment secures to the accused any superior rights and privileges; but certainly a prosecution by information takes from him no immunity or protection to which he is entitled under the law.' And the opinion cites and relies upon a decision of the supreme court of Wisconsin in the case of Rowan v. State, 30 Wis. 129. In that case the court, speaking of the fourteenth amendment, says: 'But its design was not to confine the states to a particular mode of procedure in judicial proceedings, and prohibit them from prosecuting for felonies by information instead of by indictment, if they chose to abolish the grand jury system. And the words 'due process of law' in the amendment do not mean and have not the effect to limit the powers of state governments to prosecutions for crime by indictment; but these words do mean law in its regular course of administration, according to prescribed forms, and in accordance with the general rules for the protection of individual rights. Administration and remedial proceedings must change, from time to time, with the advancement of legal science and the progress of society; and, if the people of the state find it wise and expedient to abolish the grand jury and prosecute all crimes by information, there is nothing in our state constitution and nothing in the fourteenth amendment to the constitution of the United States which prevents them from doing so.'

On the other hand, it is maintained on behalf of the plaintiff in error that the phrase 'due process of law' is equivalent to 'law of the land,' as found in the twenty-ninth chapter of Magna Charta; that by immemorial usage it has acquired a fixed, definite, and technical meaning; that it refers to and includes, not only the general principles of public liberty and private right, which lie at the foundation of all free government, but the very institutions which, venerable by time and custom, have been tried by experience and found fit and necessary for the preservation of those principles, and which, having been the birthright and inheritance of every English subject, crossed the Atlantic with the colonists and were transplanted and established in the fundamental laws of the state; that, having been originally introduced into the constitution of the United States as a limitation upon the powers of the government, brought into being by that instrument, it has now been added as an additional security to the individual against oppression by the states themselves; that one of these institutions is that of the grand jury, an indictment or presentment by which against the accused in cases of alleged felonies is an essential part of due process of law, in order that he may not be harassed and destroyed by prosecutions founded only upon private malice or popular fury. This view is certainly supported by the authority of the great name...

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