People v. Thomas

[393]

MARKS, J.

Appellant was accused, by an information filed in the Superior Court of Orange County, of the crime of possession of intoxicating liquors, with two prior convictions. A jury trial was waived and he was found guilty and was sentenced to imprisonment in the county jail of Orange County for thé term of six months, and, to pay a fine of five hundred dollars.

At the time of his arraignment, and before his plea to the information, his counsel moved to set aside the information upon the ground that appellant had not been legally committed by a magistrate as required by section 995 of the Penal Code, for the reason, as stated by counsel, that the evidence before the committing magistrate failed to show probable cause of the two prior convictions. The motion was denied. It was renewed at the opening of the trial and again denied. These rulings are now complained of as error. No other question is presented on this appeal.

It is the well-established rule in California that the question of the sufficiency of the evidence taken before a committing magistrate to show probable .cause for holding a defendant for trial in the Superior Court can be raised by

habeas corpus,

but not by motion to set aside the information.

(People

v.

McCurdy,

68 Cal. 576 [10 Pac. 207];

People

v.

Sehorn,

116 Cal. 503 [48 Pac. 495];

People

v.

Beach,

122 Cal. 37 [54 Pac. 369];

People

v.

Creeks,