Ex Parte Chambers

[477]

BURNETT, J.

In the return to this application for a writ of

habeas corpus

appear three warrants of arrest in proper form which it is claimed by the sheriff of San Joaquin County justify his detention of petitioner. The first two were issued by a justice of the peace, based upon verified complaints charging two separate offenses of perjury, and the third is a bench warrant upon an indictment, also for perjury, found by the grand jury of said county.

As to the warrants issued by the said justice, the contention of petitioner is as follows: “No preliminary examination has been held upon either charge, neither does it appear that the officers whose duty it is to conduct such preliminary examination intend to hold a preliminary examination upon either charge, as four months and twenty days have elapsed since petitioner was deprived of her liberty upon said charges, during which time she has repeatedly requested that preliminary examination be held, all of which requests have been ignored. While such process was at first lawful, she has certainly become entitled to a discharge by reason of the failure of the officers to follow the plain mandate of the law in the premises. (Pen. Code, sec. 1487, subd. 2; Const., art. I, sec. 13; Pen. Code, secs. 859, 860 and 861.)”

As to the other process we have this contention: On October 24, 1916, petitioner was indicted for perjury. Upon arraignment, November 20, 1916, a demurrer was interposed, one point being that while the indictment charged the making of certain false statements, there was no sufficient averment of what the real facts were. The demurrer was sustained and the court made an order granting the district attorney leave to amend by November 21, 1916, at 10 o’clock A. M. “This was not an order or the equivalent of an order that the case be resubmitted to another grand jury.

(Ex parte Williams,

116 Cal. 512, [48 Pac. 499];

Ex parte Hayter,

16 Cal. App. 211, [116 Pac. 370].) But whether it may be considered the equivalent of an order or not, it was not submitted to another grand jury, and the demurrer having been sustained, the prosecution was at an end (Pen. Code, sec. 1008;