Ex parte Nicholas

The petition filed on behalf of the said Nicholas alleges, in substance, that his detention is illegal, because he has been charged by information with the crime of embezzlement without any previous examination and commitment by a magistrate for such crime, and because the superior court has denied his motion to dismiss the information, which motion, he says, was based upon the ground that said information had not been found and filed according to law.

In my opinion, the petition is upon its face wholly insufficient to justify the issuance of the writ. Construed with the utmost liberality in favor of the petitioner, all that it shows is, that an information has been filed in the superior court charging him with an offense within the *642 jurisdiction of that court; that he has moved the court, on one of the grounds enumerated in the statute (Pen. Code, sec. 995), to set aside the information, and that the court has erroneously denied his motion.

But the error of the superior court in denying his motion does not make his imprisonment illegal in a sense which will entitle him to be discharged, or to raise the question on habeas' corpus.

The superior court had jurisdiction to hear…

I concur in the order discharging the writ, but am unable to concur in the views expressed by the majority. Our constitution provides that “offenses heretofore required to be prosecuted by indictment shall be prosecuted by information after examination and commitment by a magistrate, or by indictment with or without such examination and commitment, as may be prescribed by law.” (Const., sec. 8, art. I.) It was for a long time claimed by many that the proceeding by information was in conflict with the provision of the fourteenth amendment of the constitution of the United States, that no state should deprive any person of liberty without “ due process of law.” The question was finally settled by the supreme court of the United States in the Hurtado case. ( 110 U. S. 516 .) It was there held that a proceeding under the provisions of our constitution and Penal Code, resulting in a conviction of murder, was not in violation of any provision of the fourteenth amendment, it appearing that the party convicted had been examined before a magistrate, who, after the accused had been heard (with the aid of counsel and the right of cross-examination of witnesses, whose testimony was reduced to…