Older v. Superior Court

THE COURT.

This is an application for an alternative writ of mandate, to compel the respondents to entertain and decide, upon the merits, a certain question involved in petitioner’s motion for a change of the place of trial of a certain criminal cause, wherein the petitioner and one R. A. Crothers are the defendants, from the county of Kern to the city and county of San Francisco.

Ordinarily, this court does not feel called upon to file an opinion, giving its reasons for the issuance of a preliminary writ within its jurisdiction to cause to he issued, and ordinarily will not issue such writ where the cause out' of which it grows originates in a county not within the territorial jurisdiction of the court. But, as the action out of which this

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application originates is pending in Kern county, which constitutes a part of the second appellate district, and, as we recognize that there should exist between the several district appellate courts such degree of comity as should justify us, ordinarily, in refusing to entertain an application for a writ of any character affecting a cause of action or originating from any cause arising in another district, we think that, as we feel constrained, under the circumstances as presented, to order the issuance of the alternative writ here applied for, it is proper—in fact, it is due our brothers of the second district ■—to briefly state our reasons therefor.

The facts may thus be briefly stated: The petitioner and the said E. A. Crothers, managing editor and publisher, respectively, of the “San Francisco Bulletin,” an evening newspaper published in the city and county of San Francisco, were, on the twenty-fifth day of May, 1908, informed against by the district attorney of Kern county for criminal libel, by publishing an alleged defamatory article concerning one William S. Tevis. Said petitioner and said Crothers, upon being arraigned upon said charge, each entered a plea of not guilty thereto.

Thereafter, the Hon. Paul W. Bennett, judge of the superior court of Kern county, before whom said defendants were arraigned as aforesaid, requested the respondent, the Hon. C. W. Norton, a judge of the superior court of San Joaquin county, to preside at the trial of said defendants, and said Norton consented thereto.