I concur in so much of the opinion of the court as holds that the appointment of an elisor to select and summon talesmen for the completion of the grand jury was, in the absence of any finding of disqualification of the sheriff, a violation of the statutory provisions regulating the formation of grand juries. But I do not think it can be held that the superior court is exceeding its jurisdiction in proceeding with the trial of the petitioner upon the indictments which have been presented against him, and if not, its action cannot be arrested by prohibition.
Precisely the same vice which infects the proceedings in this case was disclosed in the Southwell case, and several later cases in which it has been followed (People v. Southwell, 46 Cal. 141; People v. Colby, 54 Cal. 37; People v. Hunter, 54 Cal. 65), in all of which it was expressly held that for such a violation of the statutory provisions ou this subject there was no remedy by appeal. This would, of course, be, as the court intimates, only an additional reason for holding that prohibition is the proper remedy, if, as contended, the superior court has no jurisdiction to try an indictment found and presented by a body so irregularly organized.
But I think that while the only point expressly decided in the Southwell case was, that there was no rem*269edy by appeal, the decision necessarily implies that in such cases the superior court has jurisdiction to proceed to trial and judgment. For surely it ought not to be supposed, in the absence of anything necessarily involving such conclusion, that this court meant to decide that the legislature by any sort of amendment to the Penal Code could oust it of its constitutional appellate jurisdiction in criminal cases; that it could, by merely omitting to provide for grounds of challenge to the panel of a grand jury, or of motion to quash or set aside an indictment, enable the superior court to try and convict a citizen upon an accusation presented by a body of men lacking in the essential constitutional qualifications of a grand jury, without having its action reviewed on appeal to this court, where, by the constitution itself, the power of review in such cases is lodged. Such a decision, I say, is not to be imputed to the court when it has not been expressly made, unless it is necessarily to be implied from the conclusion reached, or the reasoning upon which such conclusion is founded; and I see nothing in the opinion of the court in the Southwell case from which it can be implied that the action of the superior court in pretending to .try an indictment presented by a body of men claiming to be a grand jury, but which is not a valid, constitutional grand jury, cquld not be reviewed on appeal. On the contrary, I find the distinction stated with quite sufficient clearness between a de facto grand jury, whose indictments, so far from being void and subject to collateral attack,_ are legally sufficient to justify the court in proceeding to try them, and a body claiming to be a grand jury, but having no semblance or color of authority. With respect to such a body it is distinctly intimated that it would be the duty of the superior court to strike from its files any pretended indictment that it might present, and (as I think must be understood) that if the superior court neglected its duty in that respect, its action would be reversed on appeal. But whether or not this is what the court meant to say, it certainly said nothing to the contrary effect. *270What was said in the subsequent case of Levy v. Wilson, 69 Cal. 108, is also perfectly consistent with this view. An accusatory paper returned as an indictment by a body of men not constituting “a valid, constitutional grand jury ” is worthless and void, and no court has jurisdiction to bring the person accused to trial upon it.
But what is a valid, constitutional grand jury? It is, I think, a body of men possessing the constitutional requisites of a grand jury as distinguished from merely statutory requisites. As to the former, the legislature cannot dispense with them, nor can it, by altering or refusing to enact rules of procedure, deprive this court of the constitutional power to enforce their observance through the medium of an appeal or writ of error, or by prohibition, when that may be necessary. But as to mere statutory regulations in regard to the selection and summoning of talesmen to complete the panel of a grand jury, — which exist only by the grace and favor of the legislature, — it is entirely competent for the same power which has prescribed them to determine what, if any, advantage may be taken of their violation.
This principle I find very clearly and forcibly stated by Judge Andrew's, delivering the opinion of the court of appeals of New York in the case of People v. Petrea, 92 N. Y. 144: “ If the defect in the constitution of the tribunal deprived it of the character of a grand jury in a constitutional sense, there can be no doubt that the court would have been bound to have taken notice of it, although no statute authorized it, or even if the statute assumed to preclude the raising of the objection. But when the defect is not of that character, and the defendant may be held to answer the indictment without invading any constitutional right, then the question is one of procedure merely, and the right of the defendant to avail himself of the objection is subject to the regulation and control of the legislature."
This, it seems to me, is unquestionably a sound view, and it is conclusive of this case. Here the grand jury was not selected as the law prescribes, but it is not lack*271ing in any constitutional requisite. It is composed of nineteen members,—the number prescribed by the statute for the time being,— a number within the common-law limits of not less than twelve nor more than twenty-three. It has been impaneled, sworn, and charged with the duties of a grand jury by, and is acting under, the direction of a court vested with the power to impanel it, and it was drawn and summoned in the sense of the constitution. (Art. I., sec. 8.) As to this point, I do not think that the constitution means anything more than that a panel must be drawn in the first instance. It does not require in case, after a regular drawing and summoning of the panel, there are not a sufficient number to form a grand jury, that talesmen for its completion should be drawn. In other words, I hold, as it has invariably been held heretofore, that this provision of the constitution was not intended to change the law existing at the date of its adoption. These indictments are therefore not void, and the legality of the grand jury cannot be attacked otherwise than by motion or challenge of a person indicted upon some ground allowed by the statute.
As to the objection that the indictment for bribery in this case shows on its face that no part of the offense was committed in San Francisco, no answer is made, and I do not see how any answer can be made to it. But although it seems pretty clear that the superior court of San Francisco has no jurisdiction of the offense charged, I do not think this court should interfere by prohibition, until the particular defect referred to has been called to the attention of the superior court by demurrer, and even then appeal would be the usual and sufficient remedy.
The other objections to the indictment do not, in my opinion, involve any question of jurisdiction. Upon these grounds, while fully concurring with the court in its construction of the statute relating to the appointment of an elisor to select and summon talesmen, I am constrained to dissent from the conclusion that the error of the superior court can be corrected by prohibition. ,