Malowitz

By each of five counts contained in a com-

plaint filed in the Municipal Court of the City of Los Angeles, defendant was charged with the commission of the crime of grand theft. At the close of his preliminary examination thereon in said court, the presiding magistrate therein orally announced that defendant would be discharged as to each of four counts, but that he would be held to answer in the superior court on one specified count only contained in the complaint, and thereupon directed the prosecuting attorney to prepare a special commitment in accordance therewith for the signature of the magistrate. However, in either attempted or purported compliance with the pertinent provisions of section 872 of the Penal Code, at that time the magistrate indorsed upon the complaint a written order of which the following is a copy:

Ten days later, without the presence of either the defendant or his counsel, and without any opportunity being afforded to either of them to be heard in connection therewith, the magistrate signed a second or “special” order of commitment of defendant by which he was held to answer to the superior court on each of two counts of grand theft, but which…

I concur in the judgment. But I cannot agree entirely with the foregoing opinion in its interpretation of the decision in People v. Cohen, 118 Cal. 74 [ 50 Pac. 20 ]. I think that the limitation placed by that decision, upon the right and power of a judge while sitting as a magistrate, to avail himself of the services of the clerk of the court in which he is a judge, is too narrow; and I venture so far as to doubt that it will be completely approved if brought before the Supreme Court for re-examination.

A petition for a rehearing of this cause was denied by the District Court of Appeal on July 27, 1933, and an application by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 10, 1933.