The opinion
Sharpstein, J., dissenting.
I dissent. It,seems to me that the only serious question in this case is, whether the court, in the absence of an affidavit showing that the sheriff and coroner were “disqualified, or by reason of any bias, prejudice, or other cause would not act promptly or impartially,” has the power to direct “an elisor chosen by the court forthwith to summon so many good and lawful men of the county, or city and county, to serve as jurors, as may be required,” which was fully and carefully considered in People v. Southwell, 46 Cal. 141 , *277 and determined against the contention of the petitioner. Under the law then in force, the coroner was authorized to execute process only when the sheriff was a party to an action or special proceeding. It nowhere appears, nor is it suggested, in People v. Southwell, 46 Cal. 141 , that the sheriff was disqualified to serve the venire. Therefore the power of the court to direct it to the coroner, in that case, rested upon no better foundation than the power of the court in this case to direct it to an elisor. The court, in People v. Southwell, 46 Cal. 141 , very pertinently remarked that “ a grand jury summoned in pursuance of a venire duly issued cannot be said to be a wholly illegal body having no semblance of authority merely because the court erroneously directed the venire to be served by the coroner instead of the sheriff.”
In that case the court said: “We think the court erred in directing the venire to be summoned by the coroner instead of the sheriff.” That shows that it was not a case in which the court was authorized by law to direct the venire to the coroner. Had it been, the court could not have said that it was error to so direct it. I think the opinion of the court in People v. Southwell, 46 Cal. 141 , is amply supported by reason and authority, and that it would be much safer to follow than to overrule it.
I therefore think the application for a writ of prohibition in this case should be denied.