In Re Heinze

California Court of Appeal Aug 25, 1931 No. Docket No. 1172.Published

Before: Thompson

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Holding. A defendant who is arraigned and enters a plea of not guilty without moving to set aside the information under Penal Code section 995 waives the right to challenge the legality of the commitment or the sufficiency of the evidence before the magistrate.

Issues

Whether a defendant waives the right to challenge the sufficiency of evidence before a magistrate by failing to move to set aside the information under Penal Code section 995.
Whether a defendant may be re-arrested for the same offense after a discharge on habeas corpus due to a defect of proof.

Disposition. denied

THOMPSON (R. L.), J.

This is a petition for a writ of

habeas corpus.

It is contended the order of a magistrate holding the petitioner for trial in the superior court upon a charge of attempting to extort money contrary to the provisions of section 524 of the Penal Code is void for failure to have established at the preliminary examination the

corpus delicti.

It is asserted the record fails to show probable cause to believe the petitioner is guilty of the offense charged.

The petitioner is held by the sheriff of San Joaquin County' pursuant to a commitment duly issued by a justice of the peace of Stockton township, based upon an order previously made by him holding the petitioner for trial in the superior court upon the charge of attempting to extort money contrary to the provisions of section 524 of the Penal Code. Upon proceedings duly had in the justice’s court, an order of the above-named magistrate was made July 8, 1931, binding the petitioner over for trial for the .offense last mentioned. The petitioner was thereupon held

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a prisoner upon said charge pending the trial thereof. On July 17, 1931, upon a previous petition for a writ of

habeas corpus,

the Superior Court of San Joaquin County discharged the prisoner. On the last-mentioned date a new complaint was filed against the petitioner in said justice’s court charging him with the same offense in substantially the same language in which the first complaint was couched. The petitioner was again taken into custody by the sheriff. On July 20, 1931, another preliminary examination was held. Additional testimony was then adduced. This petition for a writ of

habeas corpus

alleges that the magistrate, on the'last-mentioned date, “without reasonable or probable cause, or without the

corpus delicti

having been established, made an order holding said petitioner to answer to the superior court”. August 3, 1931, an information was filed in the Superior Court of San Joaquin County charging the petitioner with the crime of attempting to extort money contrary to the provisions of section 524 of the Penal Code. Upon the last-mentioned date the petitioner was duly arraigned in open court and pleaded “not guilty” of the offense with which he was charged. The cause was then set for trial for September 1, 1931. No motion was made pursuant to section 995 of the Penal Code, to set aside the information on the ground that “before the filing thereof the defendant had not been legally committed by a magistrate”. This petition for a writ of

In Re Heinze

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THOMPSON (R. L.), J.

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