The record-union., 1891-02-23
G. H. GILMAN,
Red House, Sacramento.

conducting water upon the lower tract
the tract below the land held by Kewen
at the time the contract was made; but
as to such lower tract, | think the defend
ant is entitled to use the water in the same
manner as ii no contract had ever been
entered into between Wilson and Kewen.
and as if defendant had never purchased
the upper tract from Kewen.
The defendant did not in express terms
set up his right as IL riparian proprietor
in the lower tract, and there may be Il doubt
as to whether such right has been liti-
gated herein. If the issues and the decree
do not cover the rights of the defendant
as riparian owner Of the tract below, re-
gardless OF the contract, what / have said
is lnapplicable to the case; but it seems
to me that the decree determines all the
rights of the defendant to the use of the
water, without regard to any particular
tract OF land. I therefore dissent from
that portion of the Judgment which sus-
tains in part the decree of the court be-
low. PATERSON, j.
Filled February 16 1891.
Habeas Corpus. Police Court, San
Francisco.
For petitioner, Carroll Cook. J. E..
Foulds.
For respondent, w. S. Barnes, District
Attorney.
DEPARTMENT ONE.
EX-PARTE GEO. w. BAKER,
HABEAS CORPUS.
This is an application for the discharge
of the prisoner under writ of ha6e0s
corpus.
He is confined in the County Jail of the
City and County of San Francisco await
ing trial under an information charging
the ofiense of embezzlement.
One of the grounds relied upOn nv iha
petitioner Tor his discharge is that the in
formation upon which he is about 10 be
tried is void by reason of the TACT that he
has never been legally committed by a
magistrate.
1t appears that the court, upon motion
of the defendant, set aside the first in
formation filed against him, upon the
ground that he had not been legally COM
mltted bya magistrate, and ordered that
the District Attorney file another inform
alton, and it is upon this second inform
nation that the defendant is about to be
tried.
An information can only be set aside
upon the grounds:
L. That before filing thereof the defend
ant had not been legally committed by a
magistrate.
2. That it was not subscribed by the
District Attorney Of the county. (Section
995, Penal Code.j
~ PtAis'.'S iSSdlly IS
used IN the foregoing section, refers t. the
examination OF the case and the holding
OF the defendant to answer as prescribed
by Title 3, Chapter Z, of the Penal Code.
Section 9g7 OF the Penal Code, which
prescrlbes the course to be pursued after
an information has been set aside upou
motion OF the defendant, is vague and un-
satisfactory; yet, it appears therefron,
that the court can only order new in
formation to be filed when the one in the
first instance has been set aside bv reason
OF the failure of the District Attorney to
subscribe his name thereto, and that
when the information is set aside because
the defendant has not been legally com
mltted," then he must be taken before
committing magistrate for another ex-
anlInatlon II the District Attorney desires
to further prosecute the case.
After the magistrate has decided that ;,
public otiense has been committed, and
that there is sufficient cause to believe the
defendant guilty thereof, it is his duty to
return TO the Superior Court the warrant,
dePos1tlonS, Endorsements thereon. un-
dertaklng, etc, and il is upon these depo-
sltIons and Endorsements that the in
formation is based. And if the iuforrla-
ton IS set aside upon the ground that the
defendant has not been legally commit
ted, it can readily be seen that it would
be idle for the court to order another in
formation to be filed for the same fatal
defects would necessarily be present at
any future hearing.
The prisoner is entitled to his discharge.
ana IL Is so ordered. GARoUTTE, j.
We concur:
PATERSON, J.,
HARRISON, j.