The opinion
CURTIS, J., Concurring.
I concur in the judgment with the greatest reluctance. I am satisfied, in view of the provisions of our codes and the decisions of this and our appellate courts relative to the selection and empanelment of grand juries, no different result could be reached from that which is set forth in the opinion signed by a majority of this court. It is apparent from the authorities cited that prohibition will not lie to restrain the trial of the petitioners upon the indictments found by the grand jury, as the members thereof were regularly summoned into court, after their names had been drawn from the grand jury box, where they had been deposited in pursuance of the law governing the selection and returning of grand jurors. (Code Civ. Proc., secs. 204 to 211.) The jury, therefore, was lawfully drawn and all members thereof were eligible to act, provided they met the qualifications fixed by law.
The method employed by the trial court in the selection and empanelment of the grand jury, which found the indictments against petitioners, was so unusual and unprecedented and so fraught with gravest dangers that it is a matter of regret with me that there is not to be found some legal authority whereby the courts might declare all acts of a jury so selected absolutely void, including the indictments against petitioners. There is no dispute as to the manner in which said grand jury was selected and empaneled. In response to an order of the trial court directing a grand jury to be drawn for the year 1934, twenty-eight prospective jurors appeared in court at the time and place fixed by the court for the empanelment of said jury. These prospective jurors were sworn in open court to answer questions as to their qualifications to act as such jurors, whereupon the court declared a recess and the trial judge repaired to his chambers with the court reporter where he interrogated each prospective juror behind closed doors and without the hearing of any person whatever, except himself the reporter and the juror under examination. The questions of the trial judge related not only to the qualifications of the juror, but they went far *526 afield into the private life of the juror under examination and into matters entirely foreign to his qualifications to act as a juror. He was asked as to his business connections, his financial status, his political affiliations, his fraternal connections and, in some instances, his religious beliefs. After being so examined each juror, with the exception of four who had been excused during the examination, was told to return to court one week hence. On the day fixed the twenty-four of the panel who had not been excused returned to court. After calling the roll the trial judge announced that he desired to interview all of them again in his chambers and that he had asked the presiding judge of the court to sit with him during said examination. Whereupon the trial judge, the presiding judge and the court reporter repaired to the chambers of the trial judge where each member of the panel was separately called into the judge’s chambers and there again examined as before, although not as minutely or extensively yet upon the same general matters as were gone into in his previous examination. This examination was also held behind closed doors, and the only persons present beside the juror under examination were the trial judge, the presiding judge and the court reporter. At the conclusion of this examination the trial judge resumed his seat upon the bench and called the names of sixteen of the prospective jurors and ordered them to return to court one week from that day. At the same time he announced that those of the panel whose names had not been called were excused. Eight were thus excused. No reason whatever was given at the time by the trial judge why any of said persons was excused from service upon said jury. At this same session of court the trial judge made an order for the drawing of twelve additional jurors from, the grand jury box' to complete the number required for a legal grand jury of nineteen. This order was complied with and the list of persons whose names were drawn was delivered to the sheriff for service, together with an order that the persons so served appear in court one week from that day. On the day appointed the trial judge, after having those on the new panel sworn to answer questions regarding their qualifications, announced that he had asked the presiding judge of said court to sit with him during the further empaneling of the jury, and directed that each member of the new panel, one at a time, come into his chambers where the presiding judge ‘ ‘ and my *527 self will question and discuss the matter with you in chambers”. Whereupon the trial judge announced a recess of court, and the presiding judge, the trial judge and the court reporter repaired to the chambers of the trial judge, where the two judges examined each member of the new panel in substantially the same manner and concerning the same matters as the members of the original panel had been examined. At the close of this examination the trial judge assumed his seat upon the bench and announced that of the sixteen persons of the original panel two had been excused. He then directed the clerk to put into the jury box the names of seven members of the new panel and to withdraw therefrom five names. This was done, and an order was made that the fourteen persons from the original panel and five from the new panel constitute the grand jury of said county for the year 1934.
In criticizing the method of selecting and empaneling the grand jury employed by the trial judge, I do not wish to be put in the position of impugning the motives or questioning the integrity of either the presiding or trial judge. They may have been, and I believe were, actuated by the best intentions and purest motives, and their sole object in pursuing the method employed by them was to secure an impartial and fearless body of men as a grand jury who would meet and handle a serious situation which these judges evidently believed to exist within their county. But the method employed in the selection of this jury in the hands of a less scrupulous official would make it possible for him to hand pick a jury, and one which might do his bidding either in punishing enemies or protecting friends, or both. He could exclude from the jury all friends of any particular person, and empanel a jury of his adversaries. And when we venture into the realm of business rivalry, political entanglements and religious controversies, there is no limit to which our imaginations would carry us respecting the injustice and wrongs that may be wrought by an unscrupulous judge in following the method employed by the trial judge in selecting and empaneling the jury in the present instance. It is not what has been done in following this method, but what may be done thereunder, that renders it dangerous and obnoxious to our sense of justice.
I am satisfied that the remedy of prohibition will not reach the dangerous method followed in this instance, and therefore *528 have concurred in the judgment. The question as to what remedy is applicable is not before us. It may be that the law is such that no relief may be had under any of the remedial provisions of our statutes. If such is the case the situation is much more serious and calls for earnest thought and grave concern on the part of those who are concerned in the administration of justice. Our opinion expressly refrains from approving the methods and practices of the trial judge, and impliedly condemns the same as irregular and improper.