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Ex parte Cahill

Supreme Court of California
Oct 1, 1877
Judgment
Subsequent
References
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Case Information
CITATION CODES
citation codes
DOCKET NO.

10,314

Attorney(S)

          E. McStay and J. H. Budd & Sons, for the Petitioner, argued that the Court to which the depositions were returned after an examination, must inquire into the alleged offense through the first Grand Jury; and that if such Grand Jury returned the depositions to the Court dismissing the charge, it could not be referred to another Grand Jury, and cited Penal Code, sec. 941; and that a Justice of the Peace could not afterward order the arrest of the defendant. They also argued that an examination of a defendant on a criminal charge was not a prosecution in the sense in which the word was used in the Penal Code in secs. 682 and 888.          Jo Hamilton, J. Hosmer, and W. L. Hopkins, for the People.

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         OPINION          By the Court:

         1. The order of dismissal of the charge made in the County Court did not operate a bar to another prosecution for the same offense, and would not have so operated, even if the case had not been subsequently resubmitted by that Court to the Grand Jury, for the offense with which the prisoner is charged is not a mere misdemeanor, but a felony. (Penal Code, sec. 1387.)

         2. No bar to another prosecution having occurred, and the prisoner being at large without bail in consequence of the order of the County Court discharging him from custody, it was competent for any committing magistrate of the proper county to examine the charge made against him, and if, upon such examination, he appeared to be guilty, to hold him to answer. As observed already, the dismissal of the charge in the County Court did not bar another prosecution for the alleged offense; and although it be true, as claimed by the counsel for the prisoner, that the preliminary examination of the prisoner before a committing magistrate is not a " prosecution " in a strict sense, and within the express definition of the Penal Code, it is nevertheless a proceeding ancillary and looking to a prosecution, and without which a prosecution would ordinarily be utterly ineffectual to sub-serve the ends of justice.

         The prisoner must, therefore, be remanded to the custody of the Sheriff of the County of San Joaquin, and it is so ordered.

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