People v. Budd

THE COURT.

The defendant was convicted, under the provisions of section 26 of the statute of 1911, designated and known as the “Juvenile Court Law” (Stats. 1911, pp. 658-672), of the crime of “encouraging, causing and contributing to the dependency” of one Mamie Gianniattasio, a female person, under the age of 21 years.

This appeal is brought to this court by the defendant from the judgment and the order denying his motion for a new trial.

The document charging the offense for which the defendant was prosecuted and of which he was adjudged guilty is an ordinary complaint or deposition, verified before the county clerk and not subscribed to by the district attorney.

At the time fixed for his arraignment, the defendant demurred to said complaint upon both general and special grounds, and at the same time moved to set aside said complaint upon the grounds: 1. That before the filing thereof the defendant had not been legally committed by a magistrate. 2. That said complaint is not subscribed by the district attorney of the county.

[178]

The court overruled the demurrer and denied the motion to set aside the complaint.

The first point made of the several upon which the defendant relies for a reversal is that raised by the motion to set aside the complaint, viz.: That, prior to the time of the filing of that document, he had not been legally committed by a magistrate for the offense of which he is therein accused and that, therefore, the court could not and did not acquire jurisdiction to try him for said crime.

In the case of

Gardner

v.

Superior Court,

19 Cal. App. 548, [126 Pac. 501], the precise point thus presented was passed upon by the district court of appeal of the second district, in •an application for a writ of prohibition to restrain the superior court, sitting as a juvenile court of Los Angeles County, from proceeding further in the trial of the petitioners, who were charged, by a complaint such as the one here, with the same offense as that with which the defendant in the case at bar is charged. Mr. Justice Shaw, of that court, prepared the opinion, and, whilé denying the writ on the sole ground that there was available to the petitioners an adequate remedy in the ordinary course of law, held that, in cases arising under section 26 of the Juvenile Court Law, it was imperatively necessary that the usual procedure prescribed for the prosecution of felonies or indictable misdemeanors should be followed—that is, that the prosecution of such cases should either be by indictment or by information, after a preliminary examination of the charge before and commitment by a magistrate. The opinion in that case satisfactorily answers the argument of the attorney-general in support of the course ■adopted in this case. We, therefore, approve the result arrived at in said case as to the point under consideration and the reasoning leading thereto, and adopt the following portions of the opinion therein as a part of the opinion herein: