179 P. 527 | Cal. Ct. App. | 1919
This is an appeal by the people from an order of court setting aside an information filed charging defendant *634 with the offense of libel, upon the ground that he had not been properly committed by a magistrate.
The complaint upon which the warrant for the arrest of defendant was issued set forth a part of an editorial article which defendant published in a newspaper wherein, of and concerning the complaining witness, F. H. Lingham, it was said: "These patriots [meaning the said W. R. Edwardes and F. H. Lingham] have not the odor of 'Lunnun City' [meaning the city of London, England], out of their clothes yet, and would to-day deny the government [meaning the government of the United States of America] that protects them, if a dollar balance was on the side of betrayal," which article so published, "in so far as it states that the said F. H. Lingham would deny the government if profit would result to him from such betrayal is false and untrue, and was published by said defendant willfully and with a malicious intent to injure said F. H. Lingham." At the hearing before the magistrate the entire article, only a part of which was set forth in the complaint, was offered in evidence, from which it appeared that in referring to Lingham and Edwardes the defendant therein used language as follows: "Come out in the open, ye hypocrites." Thereupon, although the said language was not set forth in the complaint and no charge of libel based thereon, the magistrate, upon the evidence adduced at the hearing, made an order as follows: "It appearing to me that the offense of libel in publishing of and concerning F. H. Lingham at the time and in the manner alleged in the annexed complaint the following libelous words, 'Come out in the open, ye hypocrites,' meaning W. R. Edwardes and F. H. Lingham, has been committed, and that there is sufficient cause to believe that the defendant C. A. Storke named in the annexed complaint is guilty thereof, I order that he be held to answer to same and committed to the sheriff of the county of Santa Barbara." In due time an information was filed charging defendant with the offense for which he was committed and wherein the entire article which contained the alleged libelous language was incorporated.
In support of the order made respondent insists, first, that the magistrate was without jurisdiction to commit defendant because the complaint upon which the warrant of arrest was issued did not state facts which, if true, constituted a public offense; second, that the magistrate had no jurisdiction to *635 commit defendant for an offense different from that charged in the complaint, unless included in the offense so charged; and, third, that the district attorney had no right to incorporate in the information other matters contained in the article, regardless of whether or not they constituted an offense, since defendant was not committed for anything other than the use of the words, "Come out in the open, ye hypocrites." As to this last contention, suffice it to say that, while the entire article is set forth in the information, it is not alleged that any statement contained therein, other than that for which defendant was committed, constituted a public offense; hence the only offense charged in the information was that for which defendant was committed.
The first and second points may be treated together. Under sections 811, 812, and
In support of his contention respondent cites People v.Christian,
The case of People v. Hudson,
What we have said renders it unnecessary to determine whether or not the complaint stated a public offense; neither are we concerned with the question as to whether or not probable cause existed for committing defendant. Suffice it to say that the information followed and was based upon the commitment, and, in our opinion, the court erred in holding that before the filing thereof the defendant had not been legally committed by a magistrate.
The order is reversed.
Conrey, P, J., and James, J., concurred. *638