People v. Smith

Thornton, J.: Defendant was convicted on an information of the crime of robbery. Before pleading, a motion was made by his counsel to set aside the information, on the ground that before the filing thereof the defendant had not been legally committed by a magistrate. (See Pen. C., § 995.) The Court denied the motion, and defendant excepted. The sole question presented on this appeal is, whether the defendant had been legally committed upon the preliminary examination required by law.

It appears, from a bill of exceptions found in the record, that on the twenty-ninth day of November, 1880, a com- ■ plaint sworn to before R. B. Buckner, a Justice of the Peace for Santa Clara County, by William Peacock, was filed with the Justice aforesaid, charging John Doe with the crime of robbery of the sum of five dollars in gold coin of the United States, then being the property of the affiant, from the affiant’s person; that on the same day, the same Justice issued [366]his warrant in proper form for the arrest of John Doe and that he be brought before him forthwith. This warrant was delivered to one Haskell, a policeman, who arrested the defendant and brought him before the Justice on the thirtieth of November, 1880. The bill of exceptions further shows that the magistrate made the indorsement on the complaint aforementioned required by Section 872 of the Penal Code. In this indorsement the Justice styled the complaint a deposition.

According to the provision of Séction 8, Article i, of the Constitution, the offense with which the defendant was charged could only be prosecuted by information, after examination and commitment by a magistrate, and it is contended in this case there was no such examination.

According to the provisions of the Penal Code, a person, when arrested on a charge of having committed a public offense, must be examined before a magistrate. (See Penal Code, §§ 858-863.) The same Code also prescribes the manner in which the examination must be conducted. (§§ 864, 865, etc.)

It is provided by Section 869, as to this examination, that " the testimony of each witness, in cases of homicide, must be reduced to writing as a deposition, by the magistrate or under his direction, and, in other cases, upon the demand of the prosecuting attorney, or the defendant or his counsel.” The same section prescribes the manner in which the deposition shall be taken, when the testimony is in that form. This is the only requirement as to the reduction of the testimony to writing.