
    
      Ex parte Brenner.
    (February 2, 1891.)
    
    Habeas Corpus — Venue op Crime — Commitment.
    In habeas corpus, where the evidence certified by the committing magistrate fails to show the venue, the commitment is fatally defective; and where the application is to the supreme court, and the expense of supplying such evidence therein would be burdensome to the parties, the prisoner will bp discharged. G-roesbeok, C. J., dissenting.
    Original application for writ of habeas corpus.
    
    Granted.
    
      Hugo Donzelmann, for petitioner. Atty. Gen. Potter, for the State.
   Conaway, J.

This is a petition for a writ of habeas corpus, and is heard in this court upon the petition of Brenner, the « - turn or answer of the sheriff of Carbon county, defendant herein, the-demurrer of petitioner to said answer, and the testimony taken below and certified to this court by the committing magistrate. It appears that petitioner is held by virtue of a commitment, after a. preliminary examination by a justice of the peace of Carbon county, upon a charge of fraudulently selling land as unincumbered which he had formerly disposed of by a mortgage which has not been discharged. We find it unnecessary to pass upon the several questions raised by the pleadings and the argument in this matter. The committing magistrate certifies that the testimony sent here is all the testimony taken in the case. The word “ testimony” is not synonymous with “evidence; ” but, if documentary evidence had been introduced below, it would have been produced by some witness, and must have been referred to in the testimony of such witness. As no such documentary evidence is so referred to, it is clear that this record contains all the evidence introduced at the preliminary examination before the justice of the peace; and probably the committing magistrate in his certificate, and the stenographer in his oath, both to the effect that the testimony sent to this court is all the testimony taken at the preliminary examination, use the word “testimony” in the sense of “evidence.” Saying nothing of the objections raised as to the sufficiency of the complaint, and to the form of the warrant of commitment, we find the evidence totally insufficient to support the commitment. There is nothing showing that the transaction charged to be criminal occurred within the territorial jurisdiction of this court. There is not even a hint as to where it occurred. There is not a scintilla oí evidence as to venue, which, of course, is fatal to the existing commitment. So far all is plain. What should be done in the matter is a more difficult question. Our statute provides that the court or judge, upon a hearing of this kind, may consider the testimony taken before the committing magistrate, if it be in writing, and any other evidence procured, and may remand, commit, or discharge the petitioner, according to the circumstances of the case. No other evidence has been produced. We are loth to impose upon the parties the inconvenience and expense of appearing here for examination with the witnesses. Neither will it do to establish the practice of releasing persons charged with crime, and thus giving guilty parties an opportunity to escape justice on account of defect, however serious, in the proceedings before committing magistrates. Petitions for habeas corpus should, as a general thing, be presented to the judge nearest the place where the petitioner is restrained of his liberty, and parties will be held very strictly to this rule, except where special and very cogent reasons exist for a departure from it. This judge can hold the re-examination, when necessary, upon the spot, and do it as expeditiously and economically as the committing magistrate could. But this ease, we think, may well be left to the authorities of Carbon county. Another prosecution can be begun there if the cause of justice require it. Under all the circumstances appearing in this case, we think the petitioner should be discharged, and it is so ordered.

Mbrrelu, J., concurs.

Groesbeck, C. J.,

(dissenting.) I concur in the result reached by my learned brethren. I do not think, however, that the failure to prove the venue is a sufficient ground for the discharge of the petitioner, however fatal such a lack of proof would be on the trial of a criminal case. This defect can be supplied in habeas corpus proceedings reviewing the action of a committing magistrate, under section 1296 of the Revised Statutes, which provides that the replication to the answer and return to the petition for habeas corpus may deny the sufficiency of the testimony to justify the action of the committing magistrate, on the trial of which issue all written testimony before such magistrate may be given in evidence before the court or judge hearing the writ,in connection with any other testimony which may then be produced; and also under the provisions of section 1301, Rev. St., which states that, “although thecommitment of the plaintiff may have been irregular, still, if the court or judge is satisfied from the evidence before them that he ought to be held or committed, either for the offense charged or any other, the order may be made accordingly.” In effect, these provisions of the habeas corpus act operate as an appeal from the action of the committing magistrate, — a practice that is recognized by statute in many jurisdictions, and approved by the law-writers. Under the constitution of this state this court is clothed with original jurisdiction in ha-beas corpus, and exercises this jurisdiction in the method prescribed by law. I have no doubt that the statutory power to hear additional evidence includes the right to hear such evidence as may supply and cure defects in the preliminary examination, or that may tend to establish the guilt or innocence of the petitioner.

The complaint in this case was brought under section 1046 of the Revised Statutes, which makes it a felony, after once selling, bartering, or disposing of any tract of land, etc., to knowingly and fraudulently sell, barter, or dispose of the same. The proof shows that the petitioner mortgaged a tract of land, and afterwards sold the same to the prosecuting witness. Under a statute similar to ours, the supreme court of California held that the giving of a mortgage on land, and after-wards selling the same, did not fall within the provisions of the statute of that state, as the prior mortgaging of the premises could not be deemed to be a disposing of the same, within the intent of the statute, as the purpose of the act was confined to dealings concerning the title to the property, and looking to the parting with the title to it; and that, if merely to mortgage is to dispose of lands within the act, then to give a second mortgage would be to dispose oE them a second time, and would or might be a crime; and, further, that under the same reasoning it would be a criminal offense for one to convey lands upon which he had already placed an incumbrance by way of mortgage. People v. Cox, 45' Cal. 342. This reasoning is sound, and can well be applied to the parallel case before us. Penal statutes must be strictly construed, and nothing can be injected into a criminal statute to extend its terms, or to include by inference or implication other offenses than those clearly defined therein. As it appears from the evidence that the acts of the petitioner did not constitute an offense as defined by tlie statute upon which it is admitted the complaint was made, he was rightfully discharged.  