199 P. 347 | Cal. Ct. App. | 1921
Application for a writ of habeas corpus.
The facts of the case upon which the applicant bases his claim of right to be discharged from custody are briefly these: The applicant herein, Frank D. Williams, was arrested upon a charge of perjury embraced in a complaint filed in the police court of the city and county of San Francisco. The preliminary examination upon said charge came on for hearing before Department 2 of said police court, then presided over by Judge J. J. Sullivan, on December 7, 1920; whereupon certain evidence was introduced and testimony taken before Judge Sullivan. The cause was then continued for further hearing to December 21, 1920, at which time further evidence was educed and testimony taken before said judge, and the cause was then continued for further hearing until December 22, 1920, at 2 o'clock P. M. When the case was called upon the last named day and hour, Judge Sullivan was absent, and the cause was continued by the clerk of his court to December 23, 1920, at 10 o'clock A. M. When again called for hearing at that time Judge Sullivan again failed to appear to conduct the hearing of the cause, whereupon, and after some delay, Judge McAtee, at that time the police judge of another department of said court, was called in to Department 2 thereof by the district attorney, and requested by him to sit therein and complete the preliminary examination of said cause. Judge McAtee proceeded to do so over the objection of the defendant, who requested that there should be a hearing de novo of the case. Judge McAtee refused to accede to this request, stating that he would proceed from where the hearing before Judge Sullivan had left off, but would familiarize himself with the depositions already taken before the latter. The matter was then continued until the following day, when Judge McAtee proceeded to hear certain evidence which, it is conceded, *568 would in itself be wholly insufficient to support the defendant's commitment upon the charge; and the matter being submitted, Judge McAtee held the defendant to answer, basing his decision chiefly upon the evidence which had been taken before Judge Sullivan in the case.
[1] The main contention of the applicant for this writ is that his commitment upon the charge in question was without probable cause, since the committing magistrate had no power in deciding the case to consider the evidence which had been introduced and testimony which had been taken before Judge Sullivan, and that without such evidence there was not sufficient evidence heard by Judge McAtee to justify his commitment upon said charge.
We think this contention must be sustained. While it is true that preliminary examinations of persons accused of crime when held before a committing magistrate, and in the manner provided for in sections 858 to 883, inclusive, of the Penal Code, are usually less formal in matters of procedure than would be required upon the trial of the cause, it cannot be held that the essential principles of procedure and of evidence may be departed from by committing magistrates in the conduct of such examinations. By the terms of sections
The foregoing sections of the Penal Code clearly indicate to our minds that the essential procedure upon a preliminary examination of a felony charge does not differ materially from that required upon the trial of the cause. The magistrate who is to make the order either discharging the defendant or holding him to answer upon the charge must base that order upon evidence which he has admitted and upon testimony which he has heard in the usual way in which such evidence is presented and such testimony taken. He has no right to predicate his said order upon something which has not occurred before him; upon evidence the admissibility of which he has not passed upon, and upon testimony the weight and value of which he has not measured by the appearance, the narration and the manner of testifying of the witnesses present in person before him. It has been expressly held that upon the trial of a cause in a superior court judges cannot be changed in the midst of a hearing with the effect that the substituted judge could be entitled to decide the cause upon evidence which he had not himself heard or passed upon (Guardianship of Sullivan, *570
[2] The respondent herein, however, urges that since the testimony taken upon a preliminary examination is when transcribed denominated a "deposition" in the sections of the Penal Code above referred to, such "depositions" were entitled to be read by Judge McAtee even though the witnesses whose testimony had been thus transcribed had not appeared or testified before him.
There are two answers to this contention, the first being that the term "deposition" as used in the foregoing sections of the code does not bear the same meaning as given to the same word when used to distinguish this form of evidence permitted to be embodied in writing under section
[3] It is, however, further contended by the respondent herein that assuming that the applicant herein would have been entitled to apply for and be awarded the relief sought upon this writ, he has lost that right by his plea of "Not guilty" to the information subsequently filed, and also by his failure to take advantage of the error of Judge McAtee complained of by way of motion to set aside such information permitted to be made under section
We cannot agree with the contention of the respondent in this behalf. Section
[4] The respondent further contends that the applicant herein waived his right to the relief applied for by this writ through the fact that he did not move to set aside the information under subdivision 1 of section
In the case of People v. Sacramento Butchers' ProtectiveAssn.,
It is so ordered.
Kerrigan, J., and Waste, P. J., concurred.