People v. Hiltel

CHIPMAN, C.

Defendant was convicted on an information charging him with the crime of arson. He appeals from the judgment and from an order denying his motion for a new trial.

1. When brought into court to plead defendant moved to set aside the information, on the ground that no complaint was ever filed against him and that the warrant of arrest was issued without authority of law and the magistrate had no authority to inquire into the charge laid in the information.

It was admitted that a complaint was made and sworn to before the justice of the peace who certified to the fact in the usual way; that the justice entered in his docket the fact that the complaint was filed; thereafter he issued the warrant of arrest, and defendant appeared in person and by counsel and the complaint was read to him, whereupon he said he was ready to proceed with the hearing, and the hearing was had, witnesses being sworn for the people, and defendant was held to answer, the order being indorsed on the back of the complaint. There was no indorsement showing that the complaint was filed, and it is urged that this omission left the magistrate without jurisdiction, and was fatal to any proceedings by the trial court. The provisions of the Penal Code are found in chapter IV, and in section 811 the duties of the magistrate are pointed out. It is nowhere required that the complaint shall

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be marked filed, although the magistrate should so mark it for purposes of identification, if for no other reason. In the case here there is no question as to the identity of the complaint, and that defendant had it read to him and was committed upon it after due hearing. The jurisdiction of the magistrate did not depend upon his having first marked the complaint filed. It was sworn to before him and was entered filed in his docket, was left with him, and upon it he issued the warrant of arrest. This was sufficient to give him jurisdiction.

2.

The testimony as to Mrs. Hiltel being the owner of the premises on which the fire occurred was admissible. The land was fully identified as the same as that conveyed to defendant by deed, and by him deeded to his wife.

3. It was competent to show what the wine cellar contained and to show that the cellar and the tank-house and dwelling were apparently fired simultaneously, although the information charged defendant with burning the dwelling, and did not include the other two buildings. There was evidence tending to show that the dwelling would inevitably have been destroyed from the fire in the cellar and likewise the tank-house. They were so close to each other that the burning of any one would warrant the belief that all would inevitably perish, especially as there were no appliances to extinguish the fire, and the distance from the neighbors would make it out of the question for them to reach the scene in time to be of much, if any, avail.