Ex parte Toland

By Morrison, C. J.: The petitioner, James Toland, was tried in the City Criminal Court within and for the City and County of San Francisco, on the charge of “ battery,” and was duly convicted on the 24th of July, 1879. On such conviction, and as a punishment for said offense, the City Criminal Court imposed a fine of $150, and in [345]case said fine was not paid, ordered said Poland to be imprisoned in the county jail for the period of seventy-five days. From this judgment an appeal was taken to the late County Court of said city and county, and there the case was pending, undetermined and undecided, on the 1st day of January, 1880.

On the 3rd day of February, 1880, by an order of the Presiding Judge of the Superior Court of said city and county, the appeal was assigned to Department No. 11 of said Superior Court, presided over by the Honorable P. W. Freelon, and on the 9th day of that month the judgment of the City Criminal Court was affirmed by the Superior Court.

On the 26th day of February, a bench-warrant was duly issued out of said Superior Court, and thereupon petitioner was arrested, and is now in the custody of the Sheriff of said city and county.

Application is now made for the discharge of said Poland on habeas corpus, on the ground that the process under which he is held in custody by the Sheriff was issued without authority of law, and is therefore void.

In support of this view, counsel for petitioner relies upon § 1470 of the Penal Code, which provides that, “if the appeal is dismissed or the judgment affirmed, a copy of the order of dismissal or judgment of affirmance must be remitted to the Court below, which may proceed to enforce its sentence.” In the present case this cannot be done, as the “ Court below ” has gone out of existence under the provisions of the new Constitution, and therefore, it is argued, the prisoner should be discharged.

It would be a misfortune if such were the case. The guilt of the defendant was determined by the verdict of a jury in the City Criminal Court, and the judgment rendered upon such verdict has been sustained by the Appellate Court; vet it is claimed that the machinery of the courts is left insufficient, under the operation of the new Constitution, to enforce the judgment. The Court will endeavor to find an escape from such a conclusion, and in this case there is no real difficulty in doing so.