People ex rel. Hamilton v. Barnes

Thornton, J. On the eighteenth of September, 1884, Charles W. Finney and Thomas G. B. Finney were arrested upon a warrant duly issued by the defendant, Barnes, then and for some time prior thereto a justice of the peace for the county of Mendocino. The warrant was issued on a complaint, duly verified, before the justice above named, by William Wallach, on the 17th of the month last named, charging the parties whose arrest is mentioned above with the crime of murder, committed in the county above named on one Frank Wallach. The parties arrested were regularly brought before the respondent, as a magistrate, on the 18th day of September, 1884, by the proper officer, that the examination required by law might be had. The justice informed them of the charge against them, and gave them all the information required by the statute on such proceeding. (Penal Code, § 858.) All proceedings had [595]before the justice as regards these parties were regular up to the 22d day of the month named above, to the hour of 10 o’clock A. M. of which day the examination had, by consent of all parties, been postponed.

At this time the parties arrested appeared before the justice with their counsel, when the complaint was read to them. At this stage of the proceeding the prisoners, by their counsel, objected in writing to any examination of Charles W. Finney, and to any examination of the charge preferred, “ because the said court has no jurisdiction of the subject matter of such charge, in this : that it had already been examined by a court of concurrent powers, and, on an examination of this identical charge, an order committing him, said Charles VY. Finney, for the crime of manslaughter, was made, and the said order has not been set aside, and has all of its original force.”- The magistrate, without entering on the examination, discharged the prisoners.

The application here is for a writ of mandate, to compel the justice of the peace to proceed with the preliminary examination of Charles W. Finney. This writ may be issued by this court to any inferior tribunal or person, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station. (C. C. P., § 1085.)

That the duty of a preliminary examination, in the case of a pers'on charged regularly with having committed a public offense, arrested and brought before him, is specially enjoined by law on a justice of the peace, is distinctly set forth in the statute. (See Penal Code, §§ 858, 859, 860.) The sections cited are as follows: