People ex rel. Bonfils v. District Court of Second Judicial District

• Citation: 66 P. 1068,29 Colo. 83
• Parties: PEOPLE ex rel. BONFILS et al. v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT et al.
• Decision Date: 29 October 1901
• Court: Supreme Court of Colorado

66 P. 1068

29 Colo. 83

PEOPLE ex rel. BONFILS et al. v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT et al.

Supreme Court of Colorado

October 29, 1901

Prohibition by the people of the state of Colorado, on the relation of Frederick G. Bonfils and others, to prevent Frank T. Johnson as district judge of the Second judicial district, and the grand jury impaneled and sworn in the district court of Arapahoe county from returning any indictment against relators. Application denied.

A. B Seaman, Milton Smith, and Thos. Ward, Jr., for petitioners.

Platt Rogers and Henry F. May, for respondents.

PER CURIAM.

The object of this proceeding is to secure an order prohibiting the respondent judge and the grand jury now impaneled and sworn in the district court of Arapahoe county from considering any matter affecting the relators, or returning indictments against them. In support of their application, the relators allege that the first 12 names drawn from the jury box were not separated from the others as required by section 2618, Mills' Ann. St.; that no names were legally or regularly drawn from which to impanel a grand jury, and a great many acts of the respondent judge with respect to the selection of the grand jury are set forth with much particularity. It is charged that the respondent judge arbitrarily excused many persons who were not exempt or disqualified under the statutes; that in the selection of the grand jury the said respondent judge was prejudiced against the relators, and that his purpose and object in so excusing jurors was to secure a grand jury which would find indictments against the relators; that in attempting to impanel a grand jury from the persons whose names remained in the jury box after a petit jury had been drawn therefrom, and in excusing jurors not exempt or disqualified, and in causing others to be drawn and summoned to take the places of those excused, the court exceeded its jurisdiction, and for that reason the grand jury is an illegal one. The authorities cited by counsel concerning the right to challenge grand jurors appear to sustain the position that one bound over to await the action of a grand jury, or one having notice that an accusation against him is to be considered by a grand jury, has a right by the common law to challenge the jurors if he appears and asks such right. This right to challenge grand jurors is so limited in its scope, and of such little practical utility to persons charged or liable to be charged with criminal offenses, that it is practically an unknown proceeding in this state. The challenges which such person may make are of two sorts,--a challenge to the array, and a challenge to the poll. The challenge to the array is a formal objection to the entire panel for some illegality in the drawing, summoning, or impaneling of it. The challenge to the poll is a formal objection to one or more of the individual members for some disqualification designated by statute. It is not a ground of challenge that a juror has formed or expressed an opinion as to the guilt of the accused. And, finally, the right of challenge is not, so far as we have been able to ascertain, a proceeding under which the trial judge may be himself put upon trial, or required to pass upon or consider the truth or falsity of charges of bias, partiality, or unfairness made against himself. It has been uniformly held by this court that the only question to be considered in applications of this kind is that of jurisdiction, and that, if the inferior tribunal had jurisdiction to do the act complained of, the writ of prohibition would not issue. The granting of the writ of prohibition rests in the sound discretion of the court. The writ is not a writ of right, and it cannot be converted into a writ of error. The writ issues whenever the lower court is without jurisdiction, or, having jurisdiction, is acting in excess of its jurisdiction, and there is no adequate remedy at law. So that, when the jurisdiction of an inferior tribunal is challenged by a proceeding of this character, it is never proper to inquire whether or not the usual remedies of the law are applicable and adequate to redress the wrongs complained of until it is first determined that such tribunal did not have jurisdiction to render the judgment or do the act of which complaint is made. In cases where it appears that the lower court had no jurisdiction, the writ will not go, if, in the opinion of the court, the complainant has an adequate remedy at law. Therefore the question to be first determined is the one concerning jurisdiction. Many authorities are...