2 P.2d 561 | Cal. Ct. App. | 1931
This is a petition for a writ of habeas corpus.
It is contended the order of a magistrate holding the petitioner for trial in the superior court upon a charge of attempting to extort money contrary to the provisions of section
The petitioner is held by the sheriff of San Joaquin County pursuant to a commitment duly issued by a justice of the peace of Stockton township, based upon an order previously made by him holding the petitioner for trial in the superior court upon the charge of attempting to extort money contrary to the provisions of section
[1] The information having been filed, and the petitioner, without objection, having been arraigned thereon and having pleaded not guilty thereto, and failing to have moved to set aside the information under the provisions of section
[2] It is asserted that since the petitioner in the present proceeding was previously discharged upon a writ of habeascorpus, he could not be again legally imprisoned for the same cause. Section
"1. . . .
"2. If, after a discharge for defect of proof, or for any defect of the process, warrant, or commitment in a criminal case, the prisoner is again arrested on sufficient proof and committed by legal process for the same offense."
Assuming that the superior court properly discharged the petitioner in the former application for a writ of habeascorpus "for defect of proof" at the original preliminary examination, clearly this section authorizes the arrest and re-examination of the accused for the same offense. If the petitioner was held for trial in the superior court in the present case upon insufficient evidence, that defect could be taken advantage of only upon motion to set aside the information pursuant to the provisions of section
The petition for a writ of habeas corpus is denied.
Preston, P.J., concurred. *290