Wells v. Justice Court

VAN DYKE, P. J.

This is an appeal from an order of the Superior Court of Merced County granting a peremptory writ of prohibition. On July 31, 1958, respondent Charles Lynn Wells and another person were arrested by an officer of the Merced City Police and charged with a violation of section 148 of the Penal Code, which provides that:

“Every person who willfully resists, delays, or obstructs any public officer, in the discharge or attempt to discharge any duty of his office, when no other punishment is prescribed, is punishable by fine not exceeding five thousand dollars, and imprisonment in the county jail not exceeding five years.”

On the same day the arresting officer made complaint before the Judge of the Justice Court of the Merced Judicial District, charging therein that appellant had violated said section. The judge, acting as a magistrate, set the preliminary examination of respondent for the following August 18th. On that date, however, the city attorney of the city of Merced made a

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request that he be permitted to “amend” by changing the charge from a high-grade misdemeanor to a violation of, 1. Penal Code, section 415 (disturbing the peace), and, 2. Penal Code, section 416 (assembling for the purpose of disturbing the peace), both misdemeanors within the trial jurisdiction of the justice court.

The city attorney also asked the magistrate to “delete the previous charge of violation of section 148.” Over the objection of respondent, permission was granted and a document purporting to be an “amended complaint” was filed. Respondent was required to plead to the “amended complaint” and entered a plea of not guilty and demanded a jury trial. Thereafter respondent’s counsel made a motion that the “amended complaint” be stricken. This motion was denied. Respondent’s counsel then filed a petition in the superior court for a writ of prohibition directed against the justice court. Respondent contended that the justice court had no jurisdiction to proceed further in the matter. A peremptory writ was granted and this appeal followed.

Except in cases where arrest is made without a warrant, the usual proceeding whereby a prosecution is initiated for a felony or a high-grade misdemeanor within the trial jurisdiction of the superior court is by the making of a complaint before a magistrate for the purpose of having a warrant of arrest issued. The code provides that before an information can be filed in the superior court there must be a preliminary examination of the ease against an accused and an order holding him to answer rendered by a committing magistrate. The proceeding for a preliminary examination must be commenced by a written complaint. (Pen. Code, § 738.) Whether the arrest is made without a warrant, as in those cases wherein such arrest may be made, or whether the initiatory proceedings start with the complaint made to a magistrate, the jurisdiction of the superior court does not attach until a magistrate has, after a preliminary examination, ordered that the person arrested and brought before him shall be held for trial in that court and an information has been filed. Equally it must be said that these preliminary proceedings do not invoke the jurisdiction of an inferior court. The action taken by a judge of an inferior court who has issued the order for arrest or before whom an arrested person is brought after an arrest without a warrant, is not action by a judge of any court. It is action by a magistrate as incumbent of a distinct and statutory office.