In re Kowalsky

Seaels, C. J. — The petitioner was indicted by the grand jury of the county of San Joaquin for an alleged libel of David S. Terry, a resident of said county.

A warrant of arrest was issued under said indictment, by virtue of which petitioner was taken into custody by the sheriff, and he now sues out a writ of habeas corpus.

The petitioner claims that he is entitled to his discharge upon the ground that the indictment does not state facts constituting a crime, or showing the Superior Court of San Joaquin County to have jurisdiction of the alleged offense.

The gravamen of the charge, as contained in the indictment, is, that on or about the thirty-first day of July, 1885, at the county of San Joaquin, state of California, the defendant did willfully and maliciously, and with intent to injure David S. Terry, a resident, etc., “ caused to be printed and published, and expressed by printing in a certain newspaper called the Evening Post, printed •in the city and county of San Francisco, and .... pub[122]lished and circulated in said county of San Joaquin, the following defamatory and libelous words of and concerning said Terry, to wit, that ‘ he [said Terry meaning] had attempted to assassinate Hopkins/ contrary to the force and effect of the statute,” etc.

“ A libel is a malicious defamation, expressed either by writing, printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation .... of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule.” (Pen. Code, sec. 248.)

1. The inquiry upon habeas corpus may extend to the question whether the indictment charges any offense known to the law, for this goes to the jurisdiction which is always a proper subject of inquiry in a proceeding of this character. (Ex parte Corryell, 22 Cal. 178; Ex parte Kearney, 55 Cal. 212.)

2. Where an indictment has been found which, although defective, and subject to attack and overthrow upon a demurrer, yet if enough appears in such defective indictment to show that an offense has been committed, of which the court has jurisdiction, the party charged cannot be discharged under a writ of habeas corpus, but will be remitted to the court in which the indictment is pending for such proceedings as the law may warrant by way of defense. (Ex parte Whitaker, 43 Ala. 323.)