Los Angeles daily herald., 1886-11-19
EX-pARTE sPoONER.
Interesting Opinion of Judge
BrunsOn.
In the Superior Court of Los Angeles Cou
ty, State of California.


the supreme Court, which was by order OF
said court, made returnable before nae. Ihe
Sheriff of Santa Barbara county answers
the writ with a copy OF the Judgment VI
conviction, aud there is also furnished al
the hearing a certified copy OF the trans
cript OF the Justices docket as made IN TINS !
case, and also the complaint upon Whion
the warrant Issued. THIS complalnt was
taken, sworn to and subscribed before u
Notary Public, and not before the justice
OF the Peace who issued the warrant anu
tried the case.
The penalty portion of the Judgment is as
follows: Wherefore it is py, TINS court
here ordered and adJudged Ihn thas
for said ofense, the saiu JIM tha
county Jail for the space of six months and
do pay a hne in the sum OF one hunureu
ana fifty dollars, and be imprlsoneu ~ tne
county Jail of Santa Barbara counsy unsi, es
the fine be paid, not exceeoins on'
1--WE Gyuasiions are raised upon this record
l. Was the complaint sworn Detore NO
tary Public and not before tne ous.ioe' SUI, SUI
give the correct jurisdiction OF this onense?
q. Is the Judgment, as recorded. good or
void? to,,o
"Aii nroceedings and actions before Jus.
tice,s or Police court, for public offense
of which such courts have Jurisdiction,
must be commenced by compiainl under
oath. setting forth the offense charged with
such particulars OF time, place, person and
nronerIv as to enable the defendant 10 un-
der,tand distinctly the character of the Of
fence complained of, and to answer to COM
iii the Justice of the peace, or police JUS
tice is satisfied therefrom, that the
Offense complained OF has been committed,
he must issue Il warrant OF arrest" etc. Sec.
1927 Penal Code.
Manifestlv. the sworn complaint, for the
trial of an offense within the jurisdiction of
the Justice of the Peace, here stands in the
room and stead of an Information or lndlct-
ment in a court of record. 1t Is the charge
to which the defendant must plead, and
upon which he must go to trial. The Justice
OF the Peace is not called upon to exercise
any other judicial functions thereon, before
issuing his warrant OF arrest, than to exam
inc the complaint as presented, and to be
Satisfied therefrom" that the ofense com
planned of has been committed. he is 10
be satisfied from an examination OF the
complaint, not from any examination OF
mony. Ii he finds from that examination,
that the complaint is under oath, and states
an otfense within his jurisdiction, with SUI
son and property, he must thereupon issue
his warrant. can see no more r ason why
the oath should be administered py the Jus-
tice of the Peace than that an afndavlt Tor
an attachment i'll a civil action, sued out be-
fore the same officer, should be verified be-
fore him and no other person.
The case would be very different, as is the
Penal Code, in matters where the magls
trate has no other jurisdiction than to ex-
anime and discharge or hold to bail. In
such case it is provided by sectionS oil oil
and 8l3 of the Penal Code that ne, the JUS
tice of the Peace, must examine, on oath,
the Informant and other witnesses pro-
duced. and take their dispositions in writ
ing, and therefrom, that Is, from MS own
Asxami nation, as preserved by the Written
dispositions, he must be satisfied that the
offense complained of has been Committed
In \, so "a
the judicial functions OF his office, by pei.
sonal examination OF witnesses prouuceo
before him. Such an examination Is 1uol-
This warrant cannot issue until the judicial
mind has been satisfied by the personal ex. |
animation of witnesses, of the existence OF
certain facts constituting the crime. ln the
case at BAR it was only necessary ior MIN TO
determine. from an inspection of the veri- |
fed complaint, that the charge, as MADE, is |
sufficient, If proven, to constitute tne
crime. In the one case, the existence OF |
the facts must be established before the
warrant issues, while in the other, sufii |
cient charging of the facts is all tnat is re- |
quired, aud their existence, or non-ex
ence, remains to be established at the
trial.
For these reasons, l am of the opinion
that in all criminal cases where a lustlce oil
the peace has jurisdiction TO try anu oetet-
mine, the complaint may be drawn Oy any
competent person, and may be sworn to pc
fore any officer authorized by our State
laws TO administer oaths generally ana
without restriction, and that IN THIS respeGt
the proceeding here was regular ana sum
cient
/ come now to the consideration OF the
judgment. The petitioner was convicted
under subdivision of Sec 3ll OF tne feh,
al Code. By that section the offense charged
Aia-made misdemeanor, ana the punish,
m ent is life to the general statute. sec l9 OF
the same code, where the offense is maue
puni habis by imprisonment In county
fail not exceeding six months, or py nne
not exceeding FIVE hundred dollars, or by
both. The judgment as here rendered I'M
posed the full term of imprisonment, and
in addition thereto added, "and DO pay
fine in the sum Of one hundred and nifty
dollars and be impris oned in the county
iail of Santa Barbara county until the hne
be paid, not exceeding one hundred and
The court had already, before the add.
tfon of this fine, gone to the extreme limit
in imposing imprisonment as punish |
ment. The imprisonment contemplated by |
Sec. 1905. Penal Code, IT the fine be not paid,
is evidently as punishment Inc Inc I'M
inent of the fine. and either satisfies |
the Judgment. This is my construction OF
that section when read by the light of the
opinion of the supreme Court in er parte
The Judgment in this case was evidently |
given and made with reference to that sec |
tion. and in this respect am OF the opinion |
Where the imprisonment is imposed. not |
as punishment but as mode OF enforcing |
the satisfaction of the fine, winch hne is q |
part of the punishment, the provisions OF |
Sec. l446. Penal Code. must govern, and In |
that case the judgment must contain the |
elements in that section prescribed. Inc
proper form of judgment in like cases VIII
be found in the opinion of the court IN |
en- parte BalduUin, 60 Cal, 435. Thls 1udg,
ment as rendered, in SO far as it adjudged |
Imprisonment foI the non payment OF the |
fine. under the doctrine announced In the |
case last cited is void. BY its terms, an I'M |
days would not abate one cent Of the |
fne. At no time during the
one hundred and fifty days, would !
the paymen. OF any sum less than one nun
dred and fifty dollars, have entitled the pc |
titioner to his discharge. Had the Judgment
stopped with the six months Imprisonment
and the fine of one hundred and nfty ool,
lars, or had it embraced the PROVISIONS OF
1446 with reference to enforcing the pay |
ment OF the fine, in default OF such payment
then it wonld have been without fault and
psSalid in all its provisions, but IN so lar as IL
provides additional punlshmenta py aud,,
excess of the jurisdiction of the court pro
nouncing it, and to that extent, at least, II Is
void.
sary to consider on this writ The judgment
being void as TO the Imprisonment imposed
for or in lieu of the payment of the hne,
must IL be treated as wholly void, or can u
be enforced as to the six months uncondi.
tional Imprisonment adjudged by the court?
In the case of ex parte Kelly, Go Cal. 154, the
defendant was fined six hundred and fifty
dollars, and the judgment in directing i'm
prisonment, in case the fine was not paid,
followed the form in eg pGrte Baldwin, al
ready cited, and then added these words
"And the said defendant, while so imprls
oned' perform labor on the streets or other
nublic works of the city of Los Angeles"
This last clause of the Judgment being held
by the Supreme Court, as without authority
of law. 1t as to the remainder of the judg- |
ment, with the following language: "Now
the Judgment is q unit, and II one portion
of it Is without the jurisdiction OF the jus |
tice, the judgment is void. and the petit
rendered by the court in bane In April, |