Ex parte Baker

This is an application for the discharge of the prisoner under a writ of habeas corpus.

He is confined in the county jail of the city and county of San Francisco, awaiting trial under an information charging the offense of embezzlement.

One of the grounds relied upon by the petitioner for his discharge is, that the information upon which he is about to be tried is void, by reason of the fact that he has never been legally committed by a magistrate.

It appears that the court, upon motion of the defendant, set aside the first information filed against him, upon the ground that he had not been legally committed by a magistrate, and ordered that the district attorney file another information, and it is upon this second information that the defendant is about to be tried.

An information can only be set aside upon the grounds,—1. That before filing thereof the defendant had *85 not been legally committed by a magistrate; 2. That it was not subscribed by the district attorney of the county. (Pen. Code, sec. 995.)

The phrase “legally committed,” as used in the foregoing section, refers to the examination of the case and the holding of the defendant to answer, as prescribed by title…