Ex Parte Van Zandt

PREWETT, P. J.,

pro tem.

The petitioner is held in durance under a warrant issued by a magistrate of the county of San Joaquin, upon a complaint charging him with the crime of forgery. The allegations of the complaint are positive and not on information and belief.

[1]

He urges the single point in support of his plea for liberty that a magistrate should not, on the complaint alone, unfortified with depositions,, issue a warrant for the arrest of a person charged with the commission of a felony. He

[39]

cites sections 811, 812, and 813 of the Penal Code as authority for his position. It is, we think, universally conceded that a complaint made upon information and belief must be thus supported.

(Ex parte Dimmig,

74 Cal. 164, [15 Pac. 619].) While this case is clearly authority for the claim that a complaint based only upon information and belief will not support a 'criminal proceeding, it is, likewise, authority to the effect that the complaint alone may, under proper circumstances, be entirely sufficient.

We quote from that case the following instructive language: “Of course, where there was some evidence upon which the magistrate acted, we would not interfere. It may also, be true that the original information might be treated as a deposition; and in such view, if it contained positive evidence of facts tending to show guilt, it might be sufficient as a basis for the issuance of a warrant.”

This case has been cited as authority in many later decisions, and it has never, so far as we are informed, been either overruled or doubted. It is quoted with approval in

Matter of the Application of Mills Sing,

13 Cal. App. 736, [110 Pac. 693], where the court says: “The complaint which initiates a criminal proceeding need not be verified. (Pen. Code, § 806.) If verified, however, and containing positive evidence of facts tending to show guilt, the same may be treated by the magistrate as the deposition required by section 812 of the Penal Code.”