Ex parte Fowler

Petitioner, who is held under restraint by the sheriff of Merced county, under an information charging him with the crime of assault with a deadly weapon with intent to commit murder, makes this application for his release from the custody of said sheriff, on habeas corpus.

On January 20, 1907, a complaint or deposition was filed in the justice court of township No. 3 of Merced county, charging the petitioner with the crime of assault with a deadly weapon. Upon an examination of the charge on the thirty-first day of January, 1907, the magistrate made and entered an order, obviously attempting to commit the petitioner for trial in the superior court for the offense of assault with a deadly weapon with intent to commit murder. On the fourteenth day of February, 1907, the district attorney of Merced county filed in the superior court an information charging petitioner with the crime for which the magistrate thus attempted to order him committed. Upon appearing in court for arraignment under said information, on the fourth day

The order made by the magistrate and entered in his docket, committing petitioner for trial, reads as follows: “Whereupon the case being submitted, it is by the court ordered that Elmer Fowler be held to answer to the Superior Court upon a charge of assault with a deadly weapon with intent to commit murder, committed as follows: That said Elmer Fowler on or about che 20th day of January, 1907, at Los Banos, in said County of Merced, State of California, willfully, unlawfully and feloniously did assault one James Cowan, a human being, with a deadly weapon, to wit: a loaded pistol with intent to commit murder.”

On the eighth day of March, 1907, the magistrate made the following entry in his docket: “ . . . Received March, the 8th, 1907, from County Clerk of order of Superior Court directing of return of papers for recommitment.” Thereafter and on the 13th day of March, 1907, the following order was entered in his docket by the magistrate: “March 13th, 1907. People v. Elmer Fowler. Wherefore, the papers being returned for recommitment, it appearing to me that the offense of assault with intent to commit murder has been committed as follows: That on or about the 19th day of January, A. D. 1907, Elmer Fowler did unlawfully, willfully, feloniously and with malice aforethought assault one James Cowan in the town of Los Banos, Merced Comity, State of California, with a deadly weapon, to wit: a loaded pistol, with intent then and there to kill and murder said James Cowan, and there is sufficient cause to believe the within Elmer Fowler guilty thereof, I order that he he held to answer to the same,” etc. The same order in substance and effect was thereupon indorsed by the magistrate on the complaint filed with him on the twentieth day of January, 1907. The new or amended commitment, v/ith the other “papers,” having been by the magistrate returned to the clerk of the superior court, a new information was, on the twenty-first day of

The petitioner thus presents two points or grounds upon which he claims to be entitled to his release: 1. “That the committing magistrate was without jurisdiction to make and enter his judgment and order on the 13th day of March, 1907, and hence the commitment based thereon is void.” 2. That the said information was not filed in the superior court within thirty days after the petitioner had been examined and committed, as required by section 809 of the Penal Code.

It will be observed that the defect in the original commitment consisted in the failure of the magistrate to properly designate or describe the offense for which it was his evident intention to commit the petitioner. The complaint or deposition charged an assault with a deadly weapon, and the other depositions or testimony presumably developed, in the judgment of the magistrate, a case of assault with a deadly weapon with intent to commit murder. The magistrate entered an order in his docket, attempting to commit petitioner

But it is contended that a new information should have been based upon the original order and in conformity thereto; that the court, having once made the order committing the petitioner for assault with a deadly weapon, which said order was entered in his docket, lost all further jurisdiction of the case, and could do nothing further with reference thereto than to correct some irregularity, if any existed, in such order of commitment; that the proceeding had by him with regard to the “papers returned for recommitment” involved not simply the correction of an irregularity or defect in the order of commitment, but constituted the making of an entirely new order, committing petitioner for an entirely different and distinct offense from that for which he was originally held. We are of opinion that this point presents a question which cannot be reviewed in this proceeding. {Ex parte Nicholas on Habeas Corpus, 91 Cal. 641 , [ 28 Pac. 47 ].) The so-called new information charged the petitioner with an offense of which the superior court has jurisdiction, and it gave the court jurisdiction of the person of the petitioner, and the court therefore had jurisdiction, upon the motion to set aside the information, to hear and determine “whatever questions of law or fact were involved in the motion, and its decision, although it may be erroneous, is not void.

The second point urged is, we think, without substantial merit. The proposition involved in this point is whether or not there was failure on the part of the district attorney, in the matter of the filing of the information, to comply with the mandate of section 809 of the Penal Code. That section requires that an information shall be filed within thirty days after the examination and the order' committing a defendant for trial in the superior court. It has been held that this provision is mandatory, and that default by the district attorney in filing an information within the time limit prescribed therein, unless good cause therefor be shown, forfeits his right as such officer to do so at all upon the commitment returned by the magistrate, and that the superior court cannot, under an information filed after such time, acquire jurisdiction to try the prisoner for the offense therein charged. (In re Begerow, 133 Cal. 349 , [ 85 Am. St. Rep. 178 , 65 Pac. 828 ].) At least, the court held in that case that subdivision 2 of section 1382 of the Penal Code, which provides that the prosecution against a defendant must be dismissed, the trial not having been postponed upon the application of defendant, unless good cause be shown therefor, if the defendant is not brought to trial within sixty days after the finding of the indictment, or filing of the information, is imperative and mandatory. We can see no reason why the same may not be said of subdivision 1 of that section, prescribing the time limit of thirty days within which the information must be filed. The only question here, then, is, Was the filing of the new or second information by the district attorney more than thirty days after the date of the making of the original order,

In the case of Begerow, ( 133 Cal. 349 , [ 85 Am. St. Rep. 178 , 65 Pac. 828 ]), the court, among other- things, said: “ . . . And, indeed, a mistrial is not a trial, within the meaning of the constitution or statutory provision. The fact

In the cases of People v. Thompson, 84 Cal. 601 , [ 24 Pac. 657 ], and People v. Lane, 101 Cal. 515 , [ 36 Pac. 16 ], and, in short, in every case where the point has been presented to and noticed by the court, it is declared that there is no necessity, after an order setting aside an information, upon the ground of irregularity in the order of commitment, to go into another examination of the charge in order to justify the filing of a new information. It would certainly entail upon both the people and the defendant great inconvenience and expense if a re-examination of the charge were necessary where an information had been set aside or dismissed because of some irregularity in the order of commitment or by reason of a failure of the district attorney to keep within the terms of the order of commitment in drafting and filing ethe information. The legislature could have had no such intention, and surely there can be found no reason for justifying the courts in giving the law a construction which would produce a result so unnecessary. But such a construction would inevitably be required if the true rule is, as contended by petitioner, that a second information, directed to be filed in the place of one filed within the time but set aside, must be filed within thirty days after the order of commitment is made.

For the foregoing reasons the writ will be discharged and petitioner remanded.

Chipman, P. J., and Burnett, J., concurred.