101 Cal. 379 | Cal. | 1894
This is an appeal from an order of the superior court directing the issuance of a writ of mandate to the appellant, a justice of the peace of Sonoma county, requiring him to enter in his docket the failure of one Berta to appear for examination on November 10, 1891, at 11 A. m., and also commanding said justice to declare a certain undertaking of bail, given by defendant prior to that time, forfeited.
Berta was charged with the offense of embezzlement, and upon his arrest gave a bond in the sum of one thousand dollars, with two sureties, conditional that he would appear and answer the charge when ordered by the court. By consent of the attorneys the examination was set for November the 10th, at 11 a. m. In the mean time a demurrer was filed to the complaint upon the ground
We think the judgment should be reversed and the proceeding dismissed. As to whether the filing of a demurrer to a complaint charging a defendant with felony is an authorized practice we are not called upon at the present time to decide; neither are we justified in reviewing the legal soundness of the court’s views as indicated by its order in sustaining the demurrer to the complaint. The condition of the defendant’s bail bond was substantially that he would hold himself amenable to the orders of the court, and when the court took up the consideration of the demurrer to the complaint at 10 a. m. and the argument thereon was still in progress at and after 11 a. m., the hour set for the examination, we think the further hearing of that matter by the magistrate was, in effect, a continuance of the examination until the argument of the demurrer was concluded. Thereis no doubt but that the magistrate had the power to continue the examination even in the absence
For these reasons it is ordered that the judgment be reversed, and the cause remanded, with direction to dismiss the proceeding.
Paterson, J., and Harrison, J., concurred.
Hearing in Bank denied.