Upon an information filed in the recorder's court of the city of Brawley, Imperial County, charging petitioner with threats made to do great bodily harm against one Roy Mitchell and others, a warrant was issued by virtue of which said Ross was arrested and taken before the magistrate, and upon the charge being controverted, testimony was adduced in relation thereto, as a result of which the magistrate made an order requiring the petitioner, Ross, to "pay a fine of three hundred dollars and invest the same in United States Liberty Loan bonds of the fourth issue, and be imprisoned in the city jail for a period of ninety days, but that upon your paying your fine as stated and turning same over to your faithful little wife, the jail sentence will then be remitted." Thereupon defendant filed a purported notice of appeal to the superior court of Imperial County. A statement prepared and presented by such appellant was settled and allowed, which, together with the transcript, was filed in the superior court. Upon the matter coming on to be heard, the superior court, without taking any evidence and apparently basing its action upon the statement alone, made an order vacating and setting aside the order made by the recorder's court, and ordered that defendant (petitioner here) be required to give a peace bond in the sum of five hundred dollars, to remain in force six months from and after October 8, 1918.
The proceeding was one initiated under chapter III (sections 701 to 714, both inclusive), of the Penal Code, entitled "Security to Keep the Peace." Section 706 provides that if just reason to fear the commission of the offense is found to exist, the person complained of may be required to enter into an undertaking to keep the peace toward the people of this state, and particularly the informer, which undertaking shall be binding for six months. And section 707 provides that if such undertaking is given, the party informed against must be discharged, and upon failure to give it, the magistrate must commit him to prison, specifying therein the omission *Page 592
to give the undertaking. The magistrate in such a proceeding has no power other than that given in said chapter III. While such absurd order is not attacked in this proceeding, we may say the magistrate had no power to require Ross to invest three hundred dollars in bonds of the Fourth Liberty Loan and give them to "his faithful little wife." The order complained of here is that made by the superior court, which, on a purported appeal being taken, vacated the same and, without any trial and basing its action solely and alone upon a statement of the case, made a different order. If it was a case properly appealable, then, since it was upon questions of law and it appearing from the record presented to the superior court that the order made was erroneous, it would be the duty of the court to grant a trial de novo. It would have no power to render a new judgment based upon a statement of the case, the purpose of which is merely to illustrate the errors of law complained of. But chapter III, under which the proceeding was had before the magistrate, makes no provision for an appeal in such cases; and in Holliday v. Holliday,
The order under review is vacated and annulled.
Conrey, P. J., and James, J., concurred. *Page 593