Ex parte Sternes

Fox, J. On a former hearing of this cause, upon the coming in of the return, it appeared that the prisoner was held under a warrant of commitment issued by a justice of the peace of Nevada County committing the accused to the county jail to await trial on a charge of kidnaping, and that since such commitment, and after the issue of the writ from this court, the district attorney had filed in the superior court of that county an informa[246]tion in due form to put the accused upon trial for the said alleged offense. Petitioner thereupon offered to prove, and to introduce competent evidence for that purpose, that he was held by the magistrate and committed without probable cause, and claimed that upon making such proof he would be entitled to his discharge under subdivision 1487 of the Penal Code.

To the introduction of this proof the respondent objected, on the ground that this court was precluded from going behind the warrant of commitment and inquiring into the question of reasonable or probable cause, by reason of the fact that an information had already been filed against the prisoner, claiming that the information took the place of an indictment by the grand jury, and had. the same force and effect upon habeas corpus. Upon a brief consultation upon the bench, a majority of the justices then sitting were inclined to that view of the case, and the warrant of commitment being regular upon its face, and issued by a court of competent jurisdiction, it was ordered that the prisoner be remanded. Subsequently the petitioner moved the court to set aside the order so made and allow the parties to file briefs upon the question of the admissibility of the testimony so offered, and the court, having doubts about the correctness of its ruling, granted the motion. Subsequently the parties were heard in open court upon the subject, and the testimony, consisting of the depositions and transcript of the evidence taken by the committing magistrate, was offered and received, subject to the final conclusion of the court as to the admissibility thereof.

Upon more mature deliberation, we have concluded that we have not only the right, but that it is our duty, to inquire into the question of reasonable or probable cause, notwithstanding the filing of the information, and that the evidence tending to show whether there was such reasonable or probable cause is admissible, and the same is admitted.

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