236 P. 217 | Cal. Ct. App. | 1925
The respondent was the owner and publisher of a newspaper in the county of San Bernardino, known as the "Labor Journal," which criticised the conduct of George H. Johnson, who was district attorney of said county. Respondent was arrested upon a preliminary complaint filed by Johnson with the justice of the peace of San Bernardino township, charging respondent with libel, a high misdemeanor. A preliminary examination was expressly waived by respondent, whereupon the committing magistrate bound him over to the superior court, and in due time a deputy district attorney filed with the latter court an information embodying the alleged libelous article. Respondent demurred, setting up as grounds thereof fifteen different asserted defects in thepreliminary complaint, and as another ground he alleged that the information was based upon another and different offense from that charged in the complaint. His demurrer was sustained by the trial court, and this ruling forms the basis of the appeal here presented.
The demurrer, although demanding that "the complaint and information be set aside and held for naught," does not assign any ground upon which the information could be susceptible to demurrer under the provisions of section
The preliminary complaint in a criminal proceeding is merely an allegation in writing, signed by a person who knows the facts, charging that another has committed a *712
designated offense. (Sec. 806, Pen. Code.) [1] It is intended only as a basis for a warrant of arrest, and objections thereto must be taken while the defendant is being held under such warrant; and if taken after preliminary examination and commitment, they come too late, since the complaint is thenfunctus officio. (People v. Warner,
[2] The only legal grounds of demurrer to an information are those specifically enumerated in the statute. (People v.Schmidt,
[3] It is too obvious for argument that a demurrer which purports to set up alleged fatal defects in the preliminary complaint, after waiver of preliminary examination and the filing of an information, does not constitute a demurrer to such information, since there is no provision therefor under the terms of section
[4] The information filed in the case at bar alleged the same facts that were presented by the complaint, though setting forthin haec verba and fully the newspaper article which admittedly was published by the respondent. This did not, however, constitute another or different offense, and the asserted variance between the complaint and the information is not one of the grounds of demurrer specified in the statute. It is not necessary that a complaint shall charge the elements of an offense with all the technical nicety of an information. (People v. George,
[5] Since the complaining witness and the district attorney were one and the same person it is argued that he should not have attempted to prosecute the case. It appears *713
that Johnson signed and swore to the preliminary complaint in the justice's court as an individual. We are cited to no provision of the law, and know of none, which would prohibit him from taking such action. It would doubtless be his duty to do so if he believed that a public offense had been committed, either against himself or some other citizen. The information was signed by a deputy district attorney. Such an officer has authority to sign and file informations. (People v. Etting,
[6] No valid objection to the information appears to have been presented to the superior court in this case and its action in attempting to nullify the proceedings before it upon the strength of this so-called demurrer which merely alleged defects in an extinct pleading over which the superior court had no jurisdiction, was void and ineffectual.
The judgment on order sustaining the demurrer is reversed.
Finlayson, P.J., and Works, J., concurred.