Ex parte Moan

Morrison, C. J. This is an application for discharge on habeas corpus, founded on the following state of facts : —

On the 25th day of September, 1883, a complaint was filed before one Emil Nusbaumer, a justice of the peace of Oakland township, charging the petitioner with the crime of murder, and thereupon he was arrested on the following day, and taken before the magistrate issuing the warrant, by whom an order of commitment for examination was made.

On the 1st day of October, 1883, the petitioner was taken before another justice of the peace of the same township, by whom he was examined and committed, but no warrant for his arrest was issued by the latter magistrate.

[2171]. It is claimed, on behalf of the petitioner, that the magistrate who issued the warrant, and he alone, had power to examine the case; that the second magistrate had no jurisdiction over the case, and that all proceedings had before him were therefore void. The reason why the petitioner was taken before a magistrate other than the one issuing the warrant does not appear, and therefore is simply a matter of conjecture. The following is the provision of the Penal Code bearing upon this subject:—

“ If the offense charged is a felony, the officer making the arrest must take the defendant before the magistrate who issued the warant, or some other magistrate of the same county, as provided in section eight hundred and twenty-four.” (See § 821, Pen. Code.)

Section 824 of the same Code is as follows:—

“ If on the admission of the defendant to bail, the bail is not forthwith given, the officer must take the defendant before the magistrate who issued the warrant, or, in case of his absence or inability to act, before the nearest or most accessible magistrate in the same county, and must at the same time deliver to the magistrate the warrant with his return thereon indorsed and subscribed by him.”

All this was done, and the magistrate before wüom the petitioner was taken was, as has already been stated, of the same township and county.

By section 826 of the same Code it is provided that, “if the defendant is brought before a magistrate other than the one who issued the warrant, the depositions on which the Avarrant was granted must be sent to that magistrate, or if they cannot be procured the prosecutor and his witnesses must be summoned to give their testimony anew.” It is claimed here that to give the magistrate before whom the petitioner Avas examined and held to answer, jurisdiction, it was necessary for a complaint to be made, and to have another warrant issued. "We do not think so. The second magistrate had jurisdiction in this case without a second warrant of arrest. The defendant was already before him, and he had full power under the piwisions of the Code to proceed with, examine the case, and hold the party to answer. We are, therefore, of the opinion that the petitioner should not be discharged on this ground.