The herald., 1897-10-29
Punishment for DiIatory
Tactics
HIS DEMURRER SUSTAINED
TEN MAMMOTH TANK RIOTERS
TAKEN TO SAN DIEGO
Mr.. Shibley Fed the Kitty a Check.
vasalo on Trial New Suits.
Some Court Notes

The case of L. w. Stevens VS. A. ].
Myers, instituted by Stevens to oust
Myers from his Office as constable OF
Santa Monica, was disposed of summar-
lily by Judge York yesterday. Plaintiffs
motion for leave to amend the complaint,
to which demurrer had been inter-
posed by the defendant, was denied and
the complaint was dismissed.
Some time ago Stevens secured war;
rant from Santa Monica justice of the
peace for the arrest Of man whom ne
accused OF petty larceny. The warrant
was handed over to Myers for service
Myers, according to the accusation
made by Stevens, carried the warrant
around in his pocket for about six
months and did not serve it, although
the man he had been directed to arrest
was in Santa Monica and could have
been arrested easily.
Judge York's opinion was based upon
the ground that the plaintiffs counsel
had been unable to refer the courts to
any case where it had been held directly
that in such a proceeding the court
could allow an amendment. The court
held that the same rule as to demurrer
to an indictment or information applied
to accusations brought to oust public
officer and cited section zoos, penal code,
which provides that "if the demurrer
is allowed, the judgment is final upon
the indictment or information 4.
and is a bar to another prosecution for
the same offense unless the court, being
of the opinion that the objection !.
may be avoided in new indictment or
information, directs the case to be SUBJ
mitted to another grand jury, or directs
a new information to be fled" etc. By
section 1909, penal code. it is provided
that 'if the court does not permit tbs.
information to be amended, nor directs
that information be filed the
defendant, if in custody, must be dis
charged, or if admitted to bail, his bail
is exonerated. or If he has deposited
money instead of bail, the money must
be refunded to him."
Concerning the foundation Of the case
the court said:
THE proceeding is based upon section
772 of the Penal Code, viz:
"'When an accusation in writing, veri-
fed by the oath of any person. is pre-
sented to a'superior court, alleging that
any officer within the jurisdiction of the
court has refused or neglected
to perform the official duties pertaining
to his Office, the court must cite the
party charged to appear before the
court; and on that day :.
must procede to hear in a summary
manner the accusation and evidence
and the answer and evidence Of
fered by the party accused; and if, on
such hearing, it appears that the charge
is sustained, the court must enter a de-
cree that the party accused be deprived
of his Office, and must enter a judgment
for $500 in favor of the informer and
such costs as are allowed in civil cases.
1.-The liberal provisions of the Code of
Civil Procedure in regard to amendments
have no application whatever. The ac-
cusation in writing cannot be construed
as subject to any more liberal rules than
an indictment or information. A judg-
ment for the plaintiff necessarily works
forfeiture of the defendants Office and
subjects him to a penalty of $500, besides
the costs of the proceedings. Such cases
are criminal. 1t has therefore been held
that section Is of article l of our consti-
tuition, which declares that no person
shall be compelled in any criminal case
to be witness against himself applies
in the trial of such cases. (Thuston VS..
Clark, 107 Cal, 2S9.)
"There being no statutory provision
permitting amendments to the accusa-
ton in writing required by section 772,
the rule with respect to amendments is
no more liberal than the provisions ap-
plicable to indictments and informa-
tions.
This accusation cannot be amended.
1t is, therefore, ordered that PLAINTIFF s
motion to amend be denied and that this
cause be dismissed