People v. Napthaly

Searls, C. The defendant was accused by information of the crime of assisting a prisoner to escape.

It is averred in the information that on the twenty-third day of February, 1892, at the city and county of San Francisco, one Adam Stroh, alias Johnson, had been arrested for vagrancy, and was then and there confined in the city prison of the city and county of San Francisco, and was then and there in the legal and lawful custody of the chief of police of said city and county, pending an examination upon said charge.

That on said twenty-third day of February, 1892, in said city and county, defendant knowingly, willfully, and feloniously presented to one John Parrott, the acting keeper of said prison, an order of discharge, purporting to be a legal and lawful discharge from custody of said Adam Stroh, alias Johnson, on said charge of vagrancy. The order of discharge is set out in full, and [643]purports to show that said Stroh, alias Johnson, on charge of vagrancy, has deposited a bail bond with me (the clerk) in the sum of three hundred dollars for his appearance to answer said charge, and is dated February 23, 1892, and signed as follows, “A. A. Watson, clerk police court, per N.”

It is then charged that said Stroh, alias Johnson, was thereupon discharged by the jailor, who believed the order was genuine, but that in fact it was not a legal and lawful order of discharge, as the defendant well knew, whereby said prisoner, through the unlawful acts and contrivance of defendant, did escape from prison and go at large, etc.

Before pleading defendant moved to set aside the information upon the ground that he had not been legally committed by any magistrate before the filing of the information, and upon the ground that he had been committed without reasonable or probable cause.

The motion was heard upon the evidence taken before the magistrate, which the bill of exceptions certifies was the same as that taken at the trial on behalf of the prosecution, and which is included in the bill of exceptions; and 2, also upon the record of the magisstrate which “showed that at his preliminary examination before said magistrate he was not represented by any counsel; that the magistrate refused to continue the examination for the purpose of enabling him to employ counsel, and that said magistrate entirely failed to inform said defendant of his rights as required by sections 858, 859, and 860 of the Penal Code of the state of California.