43 Cal. 557 | Cal. | 1872
- By the Court,
The prisoner was tried in September, 1871, in the County Court of Santa Cruz County, upon an indictment for grand larceny in stealing an ox of one Peterson, and was convicted. Before the indictment was found he had been arrested and brought before a Justice of the Peace for examination into the charges made against him. He appeared there without counsel, and upon being inquired of by the Justice if he desired counsel, he answered that he did not. The Justice thereupon examined the witnesses for the prosecution and then put this question to the prisoner: “ Will you make a statement or he sworn in your own behalf?” The prisoner
On the trial had upon the indictment in the County Court the prosecution called the Justice of the Peace as a witness, and were permitted, against the objection of the prisoner, to prove the substance of his alleged testimony thus given before the Justice.
The Act of 1851 (Hitt. General Laws, Sec. 1742,) especially regulates the proceedings to be had before committing magistrates upon preliminary examinations concerning the commission of public offenses. It contains no provision authorizing or permiting an oath to be administered to the person accused. It provides, it is true, that he may, if he so desire, make a statement in relation to the charge against him, but such statement is not permitted, but is forbidden, to be made under the sanction of a corporal oath. The point of time in the course of the proceedings, at which he may make or decline to make this statement, is fixed by the statute; it must be after the deposition of the witnesses, upon which the warrant was issued, have been read to him, and when the examination of the witnesses on the part of the people, had in the presence of the accused, is closed. He must then be distinctly informed by the magistrate that it is his right to make a statement in relation to the charge against him if he see fit, but that he is at entire liberty to waive making such statement, and that his waiver cannot be used against him on the trial. This requirement is important to be observed as removing possible apprehensions lingering in his mind, calculated to disturb, or, it may be, to overrule his more deliberate judgment, and so impelling him to speak to the charge, though he would otherwise desire to remain silent. If he elect, however, to make a
"We are of opinion that, under the provisions of the statute referred to, there was no authority conferred upon the Justice to administer an oath to the prisoner upon his preliminary examination, nor to hear or receive testimony from the mouth of the accused in that proceeding, and that the statements made by the prisoner and detailed by the Justice were improperly admitted. >
Bor do we think that the subsequent Act of April 2, 1866 (p. 865), authorizing accused persons to become witnesses in their own behalf, has any applicability to mere preliminary examinations had before committing magistrates. The statute speaks of trials of indictments, complaints, and other proceedings, and provides that the credibility of the testi
Judgment reversed and cause remanded for a new trial.