81 P. 509 | Cal. | 1905
The petitioner asks this court to issue its writ prohibiting the superior court from proceeding to try him upon an accusation presented in the form of an indictment, but which he contends is no indictment, because, as he alleges, it was presented by an illegal body, and does not, as he contends, state facts constituting any offense of which the superior court has jurisdiction. We express no opinion upon either of these questions, or upon the propriety of issuing any writ, because we think the cause is not properly here. It is no doubt within our jurisdiction, if we chose to exercise it. But the constitution confers upon the newly created district courts of appeal the same power to issue writs of mandamus, certiorari, prohibition, andhabeas corpus that has been conferred upon this court, and since the charge laid, or attempted to be laid, against the petitioner is bigamy, an offense within the jurisdiction of the district court of appeal by direct appeal from a judgment of conviction, we think it is to that court the petition for a writ of prohibition should have been addressed.
We desire in the outset to make a precedent to be followed *265 in like cases hereafter: When a case is such that an appeal from the judgment of the lower court would properly be taken to the district court of appeal, a petition to prohibit the proceeding should be addressed to that court.
As to this proceeding, it is ordered, in pursuance of the authority conferred upon us by section 4 of article VI of the constitution, that the cause be heard and determined by the district court of appeal for the first district. The clerk will transmit the petition and brief of petitioner to the clerk of that court.
Lorigan, J., Angellotti, J., and Shaw, J., concurred.