Ex parte Walsh
Before: Wallace
Synopsis
Waives op Examination.—Criminal Law.—A waiver of an examination by a party charged with felony, before a Justice of the Peace, and the commitment and admission to bail of the accused by the Justice, without any examination of witnesses for the people, is not a bar to any other or further examination on the same charge by a District Judge, or other magistrate, on a proper application.
Idem.—Criminal Pbactice—Chapter 7, of the Criminal Practice Act, in effect, requires that the witnesses for the people shall be examined, but does not contemplate a total waiver by defendant of any examination into the charge made against him.
Idem. — The prevailing practice of admitting persons charged with felony to bail, without an examination of the witnesses for the people, is unauthorized by the statute.
Preliminary Examination. — Criminal Law. —Whether when the Justice of the Peace had examined the witnesses against the accused, and proceeded, in other respects, in accordance with the statute, such proceeding would necessarily oust the authority of another magistrate to proceed anew to investigate the same charge, not decided.
Wallace, J., delivered the following opinion, Rhodes, C. J., concurring:
The petitioner, Walsh, being charged, by sworn complaint in the usual form, with feloniously killing one A. J. [706]Atwell at- the County of Merced, a warrant of arrest was issued against him, and he was brought before a Justice of the Peace of that county for examination. Witnesses were subpoenaed, but none of them seem to have been sworn or examined, and Walsh, waiving an examination, was, upon such waiver, held to answer the charge, and was by the Justice admitted to bail in the sum of one thousand dollars, and, having given an approved bond in that sum, was thereupon discharged from further personal custody.
Subsequently, however, at said county, a similar complaint, charging Walsh with the commission of the same offense, was presented to the Hon. A. C. Bradford, the Judge of the Thirteenth Judicial District, who thereupon issued a warrant for his arrest, and he having been taken into custody and brought before the Judge, that officer proceeded to examine the witnesses on the part of the people and investigate the charge made against him. Walsh objected at the time against the authority of the Distinct Judge to entertain the proceeding, and in support of his objection produced the proceedings already had before the Justice of the Peace, and claimed that their legal effect was to exempt.him -from any further preliminary examination in the premises. The Judge, however, overruled the objection, and, having proceeded with the examination, held Walsh to answer the charge, and ordered -that he be committed in default of bail in the sum of $10,000,* and under this order he is now imprisoned in the County Jail of Merced County, in default of bail.
Had the Justice of the Peace in the first instance regularly pursued the statute in all respects (Chap. 7, Grim. Prac: Act), examined the witnesses against Walsh, and proceeded in other respects in accordance with law, and thereupon held him to bail' in a named sum, a question might haye arisen as to the authority of -the District Judge to renew the inquiry in this form, and in disregard of such proceedings thus regularly had before the Justice of the Peace. .....
• As, under Section 103, the Justice of the Peace and the District Judge are alike constituted “Magistrates” for this [707]
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