
    [Crim. No. 640.
    Second Appellate District, Division One.
    February 6, 1919.]
    THE PEOPLE, Appellant, v. C. A. STORKE, Respondent.
    Criminal Law—Libel—Commitment by Magistrate.—In view of the provisions of section 872 of the Penal Code, where the accused person failed to attack the complaint upon which a warrant was issued for his arrest on a charge of libel, as insufficient to justify the issuance of the warrant and examination, from which it appeared that a public offense had been committed and sufficient cause existed to believe defendant guilty thereof, it was the duty of the magistrate to commit the defendant for the offense of libel upon said examination shown to have been committed, even though the complaint concededly failed to charge a public offense, and an information based on the commitment having followed it, the superior court erred in setting aside such commitment on the ground that before the filing thereof the defendant had- not been legally committed by a magistrate.
    APPEAL from an order of the Superior Court of Santa Barbara County setting aside an information. S. E. Crow, Judge. Reversed.
    The facts are stated in the opinion of the court.
    U. S. Webb, Attorney-General, and Joseph L. Lewinsohn, Deputy Attorney-General, for Appellant.
    W. J. Ford for Respondent.
   SHAW, J.

This is an appeal by the people from an order of court setting aside an information filed charging defendant with the offense of libel, upon the ground that he had not been properly committed by a magistrate.

The complaint upon which the warrant for the arrest of defendant was issued set forth a part of an editorial article which defendant published in a newspaper wherein, of and concerning the complaining witness, F. H. Lingham, it was said: ‘ ‘ These patriots [meaning the said W. B. Edwardes and F. H. Lingham] have not the odor of ‘Lunnun City’ [meaning the city of London, England], out of their clothes yet, and would to-day deny the government [meaning the government of the United States of America] that protects them, if a dollar balance was on the side of betrayal,” which article so published, “in so far as it states that the said F. H. Ling-ham would deny the government if profit would result to him from such betrayal is false and untrue, and was published by said defendant willfully and with a malicious intent to injure said F. H. Lingham.” At the hearing before the magistrate the entire article, only a part of which was set forth in the complaint, was offered in evidence, from which it appeared that in referring to Lingham and Edwardes the defendant therein used language as follows: “Come out in the open, ye hypocrites.” Thereupon, although the said language was not set forth in the complaint and no. charge of libel based thereon, the magistrate, upon the evidence adduced at the hearing, made an order as follows: “It appearing to me that the offense of libel in publishing of and concerning F. H. Lingham at the time and in the manner alleged in the annexed complaint the following libelous words, ‘Come out in the open, ye hypocrites, ’ meaning W. B. E'dwardes and F. H. Lingham, has been committed, and that there is sufficient cause to believe that the defendant C. A. Storke named in the annexed complaint is guilty thereof, I order that he be held to answer to same and committed to the sheriff of the county of Santa Barbara.” In due time an information was filed charging defendant with the offense for which he was committed and wherein the entire article which contained the alleged libelous language was incorporated.

In support of the order made respondent insists, first, that the magistrate was without jurisdiction to commit defendant because the complaint upon which the warrant of arrest was issued did not state facts which, if true, constituted a public offense; second, that the magistrate had no jurisdiction to commit defendant for an offense different from that charged in the complaint, unless included in the offense so charged ; and, third, that the district attorney had no right to incorporate in the information other matters contained in the article, regardless of whether or not they constituted an offense, since defendant was not committed for anything other than the use of the words, “Come out in the open, ye hypocrites.” As to this last contention, suffice it to say that, while the entire article is set forth in the information, it is not alleged that any statement contained therein, other than that for which defendant was committed, constituted a public offense; hence the only offense charged in the information was that for which defendant was committed.

The first and second points may be treated together. Under sections 811, 812, and 813 of the Penal Code, a magistrate has no jurisdiction to issue a warrant of arrest without evidence in the form of a complaint, affidavit, or deposition tending at least to show the guilt of the party named in the warrant; and if a warrant be issued in the absence of such evidence, the petitioner may, under appropriate proceedings, be discharged. (Ex parte Dimmig, 74 Cal. 164, [15 Pac. 619].) Section 872 of the Penal Code provides that when an accused, in accordance with a warrant so issued upon an affidavit or complaint, is brought before the magistrate, and it appears from the examination that a public offense has been committed and there is sufficient cause to believe the defendant guilty thereof, the magistrate must make an order, signed by him, to the following effect: “It appearing to me that the offense in the within complaint mentioned [or any offense, according to the fact, stating generally the nature thereof] has been committed, and that there is sufficient cause to believe the within named A. B. guilty thereof, I order that he be held to answer to the same. ’ ’ It appears from this provision that when the accused fails to attack the complaint as insufficient to justify the issuance of the warrant of arrest and an examination is had, wherein the facts specified, namely, that an offense has been committed and sufficient cause exists to believe defendant guilty thereof, it is the duty of the magistrate, even though the complaint concededly f evils to charge a pullic offense, to commit the defendant for “any offense” upon said examination shown to have been committed, provided there be sufficient cause to believe him guilty thereof.

In support of his contention respondent cites People v. Christian, 101 Cal. 471, [35 Pac. 1043], People v. Howard, 111 Cal. 655, [44 Pac. 342], and People v. Hudson, 35 Cal. App. 234, [169 Pac. 719], But, in so far as the two former cases sustain his contention, they have been directly overruled in the later case of People v. Lee Look, 143 Cal. 216, [76 Pac. 1028], Avherein the question was almost identical with that presented in the instant case and which was decided by the supreme court in Bank. In that case the motion to set aside the information was based upon the claim that the affidavit or complaint upon which the warrant of arrest was issued by the committing magistrate was defective, in that it did not contain a charge of any crime, although it purported to charge the crime of murder. In discussing the point, the court said: “It is contended that the facts stated do not constitute a legal definition of murder; but, assuming that to be so [italics ours], the appellant could have availed himself of the defect only while he was held under the warrant of arrest founded on the affidavit. And then the objection to the document would have been, not that it was defective as a pleading, but that it did not contain sufficient evidence to justify a warrant of arrest.” And in discussing a like question in People v. Staples, 91 Cal. 23, [27 Pac. 523], also a Bank case, the court said: “Even if the offense charged in the information was, as claimed, totally different from that laid in the complaint [italics ours], it would not affect the sufficiency of the information, since, as we have seen, the information does not depend on the complaint, but upon the commitment, and it does not appear that the order of commitment differed in any respect from the information. . . . It is the duty of the magistrate to hold the defendant to' answer for the offense proved, whatever may have been the offense charged”; citing People v. Wheeler, 73 Cal. 255, [14 Pac. 796], And in People v. Velarde, 59 Cal. 457, the court said: “The object of the statute providing for the issuance of a warrant, is, that the defendant may be brought before the committing magistrate, and when he is once there, and an examination of the case is had in pursuance of the terms of the statute, and the defendant is held to answer, a foundation is laid for the filing of an information by the district attorney. The regularity of the proceeding by information did not therefore depend in any manner upon the affidavit on which the warrant of arrest was issued, and had no connection with it. ’ ’ While it may appear illogical to hold that a commitment made upon a preliminary examination, following a warrant of arrest upon a complaint that states no offense, is a valid act, nevertheless, the statute and eases cited seem to be determinative of the question and must be deemed controlling upon this court.

The case of People v. Hudson, 35 Cal. App. 234, [169 Pac. 719], cited by respondent, is not applicable to the facts involved in the instant case. The contention there made by the people, as appellant, was that the information should embrace an offense disclosed by the testimony taken before the magistrate, and not follow the commitment, as to which the court, upon the authority of People v. Nogiri, 142 Cal. 596, [76 Pac. 490], decided adversely to appellant, and in doing so quoted an extract (repudiated in the Lee Look case) from People v. Christian, supra, wherein it was held that where an information charges a defendant with an offense different from that charged in the complaint upon which he was examined, or not included therein, he has had no examination for that offense, and is entitled to have the information set aside upon the ground that he has been illegally committed. The attention of the court was not directed to the Lee Look case, wherein the court overruled what was said in the Christian case upon this point.

What we have said renders it unnecessary to determine whether or not the complaint stated a public offense; neither are we concerned with the question as to whether or not probable cause existed for committing defendant. Suffice it to say that the information followed and was based upon the commitment, and, in our opinion, the court erred in holding that before the filing thereof the defendant had not been legally committed by a magistrate.

The order is reversed.

Conrey, P. J., and James, J., concurred.  