People v. Fidelity & Deposit Co.

[687]

MARKS, J.

On May 19, 1927, one J. M. Macbeth was held to answer to the Superior Court of San Diego County on a charge of grand larceny by a justice of the peace of San Diego township, sitting as a committing magistrate, and his bail fixed at $1,000. On May 31, 1927, and before the filing of the information in the superior court, appellant executed a bail bond for Macbeth in the form prescribed in section 1278 of the Penal Code, which was presented to the committing magistrate, who approved the same and ordered the release of Macbeth on the same day. He was released from custody by the sheriff of San Diego County. The bond was filed with the county clerk on June 1, 1927. Macbeth was regularly arraigned in the superior court and entered a plea of not guilty. He did not appear for trial and the bond was forfeited.

This action was instituted in the court below to recover the principal sum named in the bond as its penalty. The answer admitted all of the material allegations of the complaint, except the indebtedness of appellant to respondent, and set up the affirmative defense that the committing magistrate had no jurisdiction to accept the bond. Judgment was rendered for respondent on the pleadings and the ease comes before this court On the judgment-roll. The sole question to be determined here is whether the acceptance and approval of the bond by the committing magistrate, twelve days after he had held Macbeth to answer, rendered the undertaking void.

If, at a preliminary examination, it appears that a public offense, coming within the jurisdiction of the superior court, has been committed, and that there is probable cause to believe the defendant guilty thereof, he must be held to answer. (Sec. 872, Pen. Code.) If the offense is bailable, an order that the defendant be admitted to bail in a fixed amount must be added by the magistrate to the order holding him to answer. (Sec. 875, Pen. Code.) "Where a defendant is held to answer it is the duty of the magistrate to “return to the clerk of the court at which the defendant is required to appear, the warrant, if any, the depositions, and all undertakings of bail.” (Sec. 883, Pen. Code.) Where the proceedings at the preliminary examination are taken by a reporter, he is given ten

[688]