People v. Smith

By the Court.

Bennett, J.

This case comes up on tbe petition of the defendants to be discharged from, the custody of the sheriff of the district of Sonoma, under a writ of

habeas corpus

heretofore issued by this court. The return of the sheriff shows that the petitioners are detained by him by virtue of an order of the judge of First Instance of the distinct of Sonoma, and that such order was made upon the return of a warrant of arrest against the defendants, charging them with the commission of various felonious acts. Accompanying the return of the sheriff is also to be found a large amount of testimony taken on the examination, going to show that several Indians in the Nappa Valley were shot on the 2Ith day of February last, their lodges burned, and a considerable quantity of wheat, barley, and other property destroyed, and tending to fix tbe perpetration of these acts upon tbe petitioners.

It is claimed by the counsel for the accused : 1st. That the affidavit upon which the warrant of arrest was issued, is defective. 2d. That the order of commitment is irregular and illegal. 3d. That it does not appear that any offence has been committed within the state of California. And 4th. That a judge of First Instance cannot exercise the powers, -which the officer has, in this case, assumed. These are in substance the grounds

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upon which it is claimed that the prisoners should be discharged.

First. It is claimed that the affidavit in pursuance of which the warrant was issued is defective, because it is alleged to be upon information merely. If this were so, wre should feel disposed to regard it as of but little value, for an affidavit which states no fact within the

knowledge

of the person making it, can be of but little weight in any legal proceeding. But we understand the affidavit in question to set forth in positive terms as within the knowledge of the deponent, the commission of the offences charged therein, and to proceed upon information as to the

names

only of the persons who were guilty of the perpetration of them. We think that the fact upon which the argument of counsel is based, does not exist; but even if it did, we are of opinion that it is now too late to raise the objection. The preliminary evidence upon an application for a warrant of arrest may be either by the affidavit of some person cognizant of the facts, or by his examination under oath taken by the officer ; and is for the purpose of satisfying the person to whom the application is made, that there is reason to believe that a felony or other crime has been actually committed, without which no warrant should issue; as also to prove the cause and probability of suspecting the party against whom the warrant is prayed. (4