In re Haas

CONREY, P. J. On writ of habeas corpus. In the Justice's Court of Belvedere Township, in the County of Los Angeles, on April 5, 1935, a complaint was filed against [321]petitioner Conrad Haas, charging him with the commission of a felony. April 10th was appointed as the day for the preliminary examination before Myer B. Marion, justice of the peace of that township. On April 8th defendant filed an affidavit in which he asserted that for certain stated reasons said Marion was prejudiced against affiant and for that reason affiant believed that he could not have a fair and impartial trial before said Marion. Thereupon, Justice Marion, made a request, which does not appear to have been a written request, calling upon H. Leonard Kaufman, justice of a neighboring township, to act in place of Justice Marion in that proceeding. Kaufman complied with that request, heard the evidence and committed the defendant to be prosecuted for the crime of attempted robbery. By said order the defendant was held to bail, which has not been .given, and consequently he is committed to the custody of the sheriff until he gives such bail.

The principal contention upon which petitioner rests his demand for release from custody is that the record does not show any written request made by Justice Marion calling upon Justice Kaufman to act in the matter of said preliminary examination; and that under the provisions of section 105 of the Code of Civil Procedure, such written request was necessary to confer jurisdiction upon Justice Kaufman. That section, as amended in 1933, contains the following provision for the calling of a “substitute justice” to hear a ease: “Justice may call substitute justice to hold court. At the written request of a justice of the peace, another justice of the peace within the same county, who possesses the legal qualifications prescribed for the court of the requesting justice, may attend such court, and thereupon is vested with the power, and may perform all the duties, and issue all the papers or process of the justice making such request. ...”

In view of the fact that Justice Kaufman was a justice of the peace qualified to act in Belvedere Township upon proper request therefor, and since at the time of the hearing and commitment he was acting as such justice, he thereby became, at least de facto, a justice and magistrate acting in the case. This being so we are of the opinion that his right to so act may not be questioned in this proceeding. Upon this particular question we have found no decision in this [322]