The sole proposition involved in this appeal is as to whether or not the court committed error in granting a motion to set aside the information on thе ground that the defendant had not been legally committed by a magistrate. The mоtion was. made on the sole ground that at the time of the preliminary examination the defendant, who was not represented by counsel, was not informed by thе magistrate of any of his rights whatsoever, in .violation of the requirements of section 858 of the Penal Code.
The defendant was a man unfamiliar with the English language and could speak and understand only the Spanish language. He was not represented by counsel at
*319
any stage of the proceedings, until the matter was up on this motion before the superior court. Without being informed of any of his rights by the mаgistrate, he was sworn and examined at the preliminary hearing. The committing magistrаte having failed to instruct the defendant of his constitutional rights, the matter comеs within the authority of the case of
People
v.
Napfhaly,
“In obedience tо this constitutional guarantee section 858 of the Penal Code provides thаt, when a defendant is brought before a magistrate under arrest on a charge of having committed • a public offense, the magistrate must at once inform him оf the charge against him, and his right to the aid of counsel.
“Section 659 (erroneously quoted in said decision; should have been 859) is as follows: ‘He must also allow the dеfendant a reasonable time to send for counsel, and postponе the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to аny counsel in the township or city the defendant may name. The officer must, without delay and without fee, perform that duty. ’
“Under section 8 of article I of the constitution, ‘offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment with or without such examination and commitment as may be prescribed by law.’
“It will be observed that, under this provision of our constitution, an offense can be prosecuted by information only after an examination and commitment by a magistrate.
“Among the causes for setting aside an information is, ‘that before the filing thereof the defendant had not been legally committed by a magistrate. ’ The necessity of such examination and commitment was recognized and upheld in
People
v.
Wilson,
“An examination which denied to defendant the right guaranteed him alikе by the constitution and statute, of *320 being defended by counsel, was in no sense a lеgal examination.
“It was a plain and palpable violation of a fundаmental right of the defendant which rendered the commitment illegal.
“It is said defendant is a lawyer, and there was no need of informing him of his right to have counsel or оf continuing the case to permit him to procure such counsel. There is sоme evidence in the record tending to show that defendant was a lawyer. . . .
“Thе court below erred in refusing to set aside the. information ; fbr which error the judgment and order appealed from should be reversed, and the court below dirеcted to set aside the information against the defendant.”
In the case at bar the superior court followed- the ruling in the ease of
People
v.
Napthaly.
The discussion of the case of
People
v.
Napthaly
in the case of
People
v.
Caballero,
The order of the superior court setting aside the information is affirmed.
Conrey, P. J., and Houser, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 14, 1927.