Toal

The defendant was convicted of an assault with intent to commit murder. From the judgment of conviction, an order overruling his motion in arrest of judgment, and an order denying his motion for a new trial he appeals. The order overruling the motion in arrest of judgment is not itself appealable by the defendant, but may be reviewed on his appeal from the judgment: People v. Majors, 65 Cal. 100 , 3 Pac. 401 .

The main point relied on by the defendant seems to be that the police court of the city of Los Angeles, before the judge of which his preliminary examination was had, and by whose order he was committed for trial before the superior court of Los Angeles county, was not a legal court; that the judge thereof was not authorized by the constitution of the state to perform any function whatever as a committing or other magistrate. The defendant made a motion in due time that the information be set aside upon the ground that before the filing thereof he had not legally been committed by a magistrate, under section 995 of the Penal Code. If in fact he was not legally committed by a magistrate, the point made is well taken: People v. Shem Ah Fook, 64 Cal. 382 , 1 Pac. 347 ; Kalloch…

It will be conceded, I presume, that the city of Los Angeles is a municipal corporation, having thirty thousand and under one hundred thousand inhabitants. The judicial power of the city, therefore, is vested in a police court, “to be held therein by the city justices, or one of them, to be designated by the mayor.” Whether such power is conferred by the act of March 18, 1885, known as the “Whitney act” (Stats. 1885, p. 213), or by the act in relation to municipal corporations of the second class (Stats. 1883, p. 200), it is unnecessary to inquire, because under both acts it is made the duty of the mayor to designate a justice of the peace to hold said police court. The city is not in consequence of this decision left without a court for the punishment of misdemeanors, and examination into the commission of felonies within the city limits. Being a city having thirty thousand and under one hundred thousand inhabitants, we have to presume, in the absence of anything in the record to the contrary, that the mayor has performed the duty required of him by the act of March 18, 1885, and designated a justice to hold the police court; and we have to presume, further, that such justice is…

I dissent. Conceding all that is said in the opinion of the commissioners as to the unconstitutionality of that portion of the charter of Los Angeles which provides for the establishment of a police court, and the jurisdiction thereof, I cannot admit that that city is left without a court for the punishment of misdemeanors, and for examination and inquiry into the commission of felonies within its borders. It is conceded in said opinion that the “Whitney act,” so called, is a general law applicable to the city of Los Angeles. Even if that be not true, the city is still not left without law and without a police court with jurisdiction ample for in *235 quiry into and commitment for offenses such as are charged against this defendant. In the absence of a constitutional provision in the charter, and of the “Whitney act,” there is still a general law for the establishment and government of municipal corporations, which establishes a police court in cities of.this class, and defines their powers and jurisdiction the same, so far as relates to this case, as the jurisdiction exercised in the examination and commitment of this defendant: See Stats. 1883, p. 200. The magistrate who…