Ex parte Walpole

Fox, J. The petitioner in this case, and one Wash-burn, were arrested upon a warrant based upon a complaint charging them with the crime of murder. They were regularly examined before a committing magistrate, and held to answer to the charge. In due time information was filed against them, and upon arraignment they [363]pleaded guilty. Washburn was sentenced to the state prison for life, but the petitioner was allowed to withdraw his plea, and upon proceedings subsequently had the information was set aside, and the court remanded the petitioner to the custody of the sheriff. Thereupon the judge of the superior court, acting as committing magistrate, again held an examination of the petitioner, and on the evidence adduced he was again held to answer. To this proceeding the petitioner objected, on the ground that the judge, acting as a committing magistrate, had no jurisdiction to hold such examination, for the reason that no complaint had been filed charging the defendant with the crime of murder, or any crime. This objection was based upon the proposition that the original complaint filed in the case was functus officio, and that a new examination could not be had without a new complaint; also on the ground that the superior court had not in terms ordered the case resubmitted to a grand jury, or that a new information be filed. The court overruled these objections, and proceeded with the examination. We do not think that there was error in this ruling, but if there was, it was subject to review, first in the superior-court, upon motion to set aside any information that might be filed, and then upon appeal; but it is not ground for discharging the prisoner on habeas corpus.

Following this examination, an information was filed, which, upon motion, was again set aside, and the court again ordered “that the said Paul Walpole be held for further examination, and that he be examined by the judge of the superior court acting as magistrate,” etc. In pursuance of this order, a further examination was had, at which the petitioner was represented by counsel, and the objection again taken that there was no complaint, etc., as before. The magistrate overruled the. objection, and proceeded with the examination, resulting in an order of commitment for the crime of murder, committed on the twenty-second day of April, 1889, at [364]