Upon the verified application of petitioner a writ of habeas corpus wаs ordered to issue to Honorable J. J. Keating, sheriff of the county of Marin, commanding him to produce petitioner before this court. According to the allegations of said application petitioner was unlawfully imprisoned and restrained in the county jail of said *459 county by respondent, the said sheriff, “under and by virtue of a pretended warrant of commitment issued on the 26th day of October, 1922, by the Honorable Herbert de la Montanya, Judge of the Justice’s Court of the Township of San Rafael, County of Marin, State of California;” that on or about August 12, 1922, before the justice of the said court, Josephine Leah Harron, wife of petitioner, swore to a complaint charging petitioner with the crime of misdemeanor, to wit, battery; that petitioner was taken into custody under a warrant of arrest and brought before the said court; that the said complaint purports to be filed on “August 12, 1912/’ and in the charging part it is alleged that on the twelfth day of August (no year is stated) “ . . . the said Howard Harron, on the said day, in said county, did willfully and unlawfully use force and violence upon the person of complainant”; that bail was first fixed by the said court in the sum of one thousand dollars, but upon petitioner informing the said justice that the bail was excessive and that his home would, in consequence of his inability to furnish such bail, be broken up and he never could enter it again, the justice asked petitioner if he meant by his declaration that he would never again enter his home, to which petitioner replied in the affirmative, whereupon the justice put this question to him: “Will you put that in writing?” that petitioner said he would and then prepared, signed, and swore to the following declaration: “I am leaving my home at 96 Minerva Ave., Fairfax, under promise to Judge De La Montanya that I will not enter it again under any circumstances. Aug. 12, 1922. Howard Harron”; that this declaration was filed with the complаint and petitioner was released from custody upon his own recognizance; that the justice thereupon told petitioner he could go to his home accompanied by a deputy sheriff for the purpose of packing his belongings and then to leave immediately in conformity with his sworn promise; and that the justice then declared he was unable to withdraw the complaint already filed, but that the case was dismissed; that petitioner was free tо go, and that the said justice then and there dismissed the case.
It is further alleged that another complaint was filed on September 5, 1922, charging the identical offense and that *460 upon tins complaint petitioner was tried, convicted, and sentenced to serve a term in the county jail.
Appended to the petition and made a part thereof are copies of the “pretended commitment” (Exhibit “A”), the complaint of August 12th (Exhibit “B”), the complaint of September 5th (Exhibit “C”), Docket B, containing “What purports to be a certified copy of the said justice ’ ’—referring to the proceedings of August 12th and September 5th (Exhibit “D”), and an abstract of the docket entry of September 5th from Docket “B” (Exhibit “E”). The only one of these papers which is certified is Exhibit “D” and in this the date of the certification is not given. Exhibit “D” reads as follows:
“Docket ‘B.’ . . . 1922 Aug. 12. Defendant duly arraigned, being, by the court, informed of all his legal rights,—including the nature of the chаrge against him, his right to counsel at all stages of the proceedings, his right to a reasonable continuance, his right to the free services of an Officer to summon witnesses on his behalf, and of his right to have a jury trial. Defendant answered that his true name is as above. Defendant released on his own recognizance. Sept. 5, in Open Court, and in the presence of the said defendant and his counsel, the District Attorney made a motion to dismiss the complaint filеd herein as above, on the ground that said complaint was defective. Motion granted by the court. H. De La Montanya, J. P.
“I hereby certify that the foregoing is a full, true and correct copy of the proceedings in said case, as shown on page 202 of my Docket ‘B’ in my office. H. De La Montanya, Justice of the Peace of San Rafael Township.”
Referring to Docket “B,” the petition alleges that the first complaint was dismissed on August 12th as above аlleged, denies the recital that it was dismissed on September 5th, denies that the district attorney on that day or any other day made a motion to dismiss it for any reason, and alleges that the entry of the purported order of dismissal on September 5th was entered nunc pro tunc in -the docket on October 28th, two days after the commitment was issued. The petition then alleges the fact to be that the justice filed a certified copy of the abstract of Docket “B” in thе superior court (the date of the filing is not alleged), *461 which abstract contained a full recital of all the proceedings on September 5th and that it nowhere appears in the abstract that the first complaint was on September 5th, or ever, or at all, dismissed, either on the motion of the district attorney, or otherwise, or at all, and that it affirmatively appears in the abstract “as hereinabove alleged, that a second comрlaint charging the identical misdemeanor that had been heretofore dismissed by the said justice on August 12, 1922, as hereinabove alleged, was sworn to by the same complaining witness, and filed with the said justice.” Then follow allegations as to two felony charges, purporting to grow out of petitioner’s domestic difficulties which are not material to a decision herein. The petition then alleges that when petitioner appeared before, the court on September 5th it was to submit to the preliminary examination on one of the charges of felony, but that instead of such examination being held, the second complaint was filed, he was tried thereon and found guilty, whereupon a motion for a new trial and a motion in arrest of judgment were successively interposed and denied, and he was sentenced to serve thirty days in the county jail. Upon these alleged facts it is claimed by petitioner that thе court dismissed the first complaint on August 12th and that the order of dismissal was not explicitly made for the purpose of amendment, within the meaning of section 1387 of the Penal Code.
Respondent filed an unverified return to the effect that he held petitioner by virtue of the said commitment, an uncertified copy of which was attached to the return, and that petitioner had been released upon the issuance of the writ. The return was accompaniеd by an affidavit of the justice purporting to traverse certain allegations of the petition, and to which was attached an uncertified copy of the first complaint, also an affidavit of the district attorney, denying certain allegations of the petition relating to the said felony charges, and to which affidavit was attached a partial transcript of the purported proceedings of September 5th, made and certified to by thе official stenographic reporter of the superior court. The docket entries were not made a part of the return. On the first hearing in this court the return was held insufficient and respondent was granted permission to file an amended *462 return. At the next hearing an amended, unverified return was filed and it was stipulated that the petition might be regarded as a traverse thereto. After oral argument the matter was ordered submitted on the filing of additional points and authorities.
The amended return is to the effect that on October 26th respondent took petitioner into custody under and by virtue of the commitment and that he remained in such custody until November 8th, when he was released on bail. The allegations which follow are that petitioner was charged in the first complaint on August 12th, that he was arraigned thereon and released on his own recognizance; that on August 23d, in open court, petitioner and his counsel being present, the district attorney was directed by the court to file the second complaint because of two defects in the first —that it purported to be filed on August 12, 1912, instead of 1922, and that the year was omitted in describing the offense; that the matter was then continued until September 5th, when the second complaint was filed, petitioner arraigned thereon, and the case continued until September 8th, on which date petitioner was tried by the court, sitting without a jury, found guilty as charged, and on his motion the case was continued until September 11th, at which time motions for a new trial and in arrest of judgment were interposed on behalf of petitioner, and on his motion the matter was continued until September 15th, on which day the said motions were argued, submitted, and denied, whereupon, petitioner stating he was ready for judgment, was sentenced to serve thirty days in the county jail. It is further alleged that an appeal was taken to the suрerior court from the said judgment and that it was affirmed; and that the commitment was issued out of the said justice’s court.
Attached to the amended return are uncertified copies of the first and second complaints, an affidavit of the justice averring that he had issued the first complaint; that certain proceedings occurred on August 23d, as mentioned in the amended return; that thé second complaint was filed on September 5th and that the order dismissing the first comрlaint “was explicitly made for the purpose of amending the same as the court was and is of the opinion” that it did not state a cause of action. Also attached to the *463 amended return was an affidavit of the district attorney, and a certified transcript of the proceedings of September 5th, more extended than the part thereof attached to the original return of the official stenographic reporter. The affidavit of the district attorney avers that on August 23d the court informed him that he would have to file a new complaint; that on September 5th he filed the second complaint “pursuant to the order of said court, as he understood, directing him to do so, and was filed for the purpose of amending the defective one then on file.”
Because of the issue of facts tendered by the pleadings and the form in which the record is presented, we have deemed it neсessary thus to describe it somewhat in detail. Petitioner alleges that the first complaint was dismissed on August 12th in disregard of the provisions of section 1387, and the showing of respondent is that no action was taken looking to the dismissal of the first complaint until August 23d, when the district attorney was directed to file a new complaint because of the indicated defects in the first one, and that the order of dismissal was not made until September 5th, when the second complaint was filed. The showing of respondent does not include any docket entries whatever, and the return is not verified. It is apparently sought by respondent to establish the facts relied on by the affidavits of the justice and the district attorney and the reporter’s transcript.
A docket is required to be kept by the justice as defined in section 93, in accordance with section 911 of the Code of Civil Procedure. “Such entries in a justice docket, or a transcript thereof, certified by the justice, . . . are
prima facie
evidence of the facts so stated.” (Id. 912.) An index must be kept. (Id. 913.) Section 1428 of the Penal Code provides: “A docket must be kept by the justice of the peace or police justice, or by the clerk of the courts held by them, if there is one, in which must be entered each action and the proceedings of the court therein.” It was said in
Garfield
v.
Douglass,
Petitioner’s contention is that under section 13, article I, of the constitution, section 1387 of the Penal Code, and the federal guarantees, he is entitled to his discharge on
habeas corpus.
This is based on the reasoning that it having been held a statutory bar arises and jurisdiction lapses, entitling a defendant to discharge on
habeas corpus,
when an order sustaining a demurrer to an indictment or information is made without directing a resubmission (Pen. Code, sec.
1008; Ex parte Williams,
The analоgy relied upon by petitioner is lacking in one essential element—in the cases cited there had been no trial of the general issue, while here issue was joined on the second complaint, petitioner was tried, found guilty, interposed motions for a new trial and in arrest of judgment, was sentenced to serve a term of imprisonment, took an appeal, judgment was affirmed, and he submitted himself in execution of the judgment in order to have the questions now presented determined upon a writ of
habeas corpus.
After conviction and appeal the writ of
habeas corpus
cannot be used as a writ of error to review the proceedings in a justice’s court. (29 C. J., sec. 36;
In re Collins,
The rule is different where
habeas corpus
is sought upon the claim that the prisoner has been placed in jeopardy for the identical offense within the meaning of the state and federal constitutions, for this goes to the jurisdiction of the tidal court to entertain the second prosecution
(Ex parte Nielsen,
Petitioner’s contention is that under the constitutional guarantees and section 1387, already mentioned, the justice’s court was without jurisdiction to entertain a second prosecution for the same offense, because the оrder dismissing the first complaint did not state it was explicitly made for the purpose of amendment. Respondent denies the applicability of the bar in section 1387, to cases in inferior courts, and contends that petitioner failed to interpose a special plea on the trial under the second complaint, and that, therefore, the point was waived. Petitioner insists, however, that in legal effect he pleaded specially as matter of defense at the trial.
To constitute once in jeopardy the party must be placed on trial for a prescribed public offense, on a valid indictment, before a competent court, with a competent jury, duly impaneled and sworn and charged with the case
(People
v.
Webb,
Section 1429 of the Penal Code declares in part: “The defendant may make the same plea as upon an indictment, as provided in section ten hundred and sixteen.” Section 1016 contemplates four pleas to an indictment or information: “1. Guilty. 2. Not guilty. 3. A former judgment of conviction or acquittal of the offense charged, which may be pleaded either with or without the plea of not guilty. 4. Once in jeopardy.” Section 1017 provides that every plea must be oral and entered upon the minutes of the court in the prescribed form. Section 1020 declares that “All matters of fact tending to establish a defense, other than one specified in the third and fourth subdivisions of seсtion ten hundred and sixteen, may be given in evidence under the plea of not guilty.”
It has been held that the statutory procedure as to the interposition of a plea in bar must be followed in respect to once in jeopardy and any statutory bar, and that the plea is waived if not interposed, even if both trials are before the same court.
(People
v.
Bennett,
Petitioner relies on the following portion of the reporter’s transcript of September 5th to prove that he specially pleaded the dismissal of the first complaint as a bar.
“The Court [to the District Attorney]: I think you had better file a new complaint. There is an error in the date, 1912, instead of 1922. (New complaint prepared by Mr. Greer.)
“The Court: Mr. Harron, here is a new complaint. [Reads complaint filed September 5, 1922.]
“Mr. Greer: Are you willing to proceed on that battery charge?
“Mr. Manning: Mr. Harron tells me he has some witnesses on the battery charge.
“Mr. Harron: I want to say this: I understood from his Honor, the Judge, at the last hearing here that this battery charge was disposed of.
“The Court: Simply dismissed because there was a defect in the date.”
*469
It may be doubted whether this constituted the interposition of a special plea. But even if it did, no finding was made thereon by the court. Whether the case is tried by jury or by the court the facts constituting the bar must be found. It has been held that where a plea in bar was interposed in conjunction with a plea of not guilty and the jury failed to find upon the plea in bar, the defendant was entitled to a new trial.
(People
v.
Tucker,
According to the authorities already cited, the plea of once in jeopardy contemplates that the trial asserted as a bar must at least have been entered upon. Here there was no trial under the first complaint.
In view of these conclusions it will not be neсessary to consider respondent’s contentions that section 1387 of the Penal Code does not apply to proceedings in the justices’ courts; nor that the first complaint did not state facts sufficient to constitute a public offense, and that, therefore, the dismissal thereof could not have been the basis of a plea in bar.
It follows that since, after final judgment, habeas corpus cannot be used as a writ of error, and petitioner has not met the burden of showing he exhausted below the defense upon which he must rely, he is not entitled to relief.
Writ discharged and petitioner remanded.
Wilbur, C. J., Waste, J., Seawell, J., Myers, J., and Kerrigan, J., concurred.