Defendant is charged with violating section 5399 of the Revised Statutes of the United States, which, among other things, provides that every person who- obstructs or impedes the due administration of justice in any court of the United States shall be punished by fine, etc. There are two counts in the indictment. The first count alleges substantially that on tin* 13fcb day of Xovember, 1896. and prior thereto, Dante R. Prince was a duly appointed and qualified commissioner of the circuit court of the United States in and for the Southern district of California, at the city of Fresno, Oal., within said district, and while acting in liis official capacity, at the time and place aforesaid, one B. T. Alford appeared before him, the said commissioner, and by his written affidavit and complaint, upon information and belief, accused one J. IT. Terry of the crime of having deposited in the United States post office, at said city of Fresno, an obscene and lewd letter; that thereupon said commissioner issued a warrant for the arrest of said Terry, under which said Terry was arrested, and brought before said *66 commissioner on the 14th day of November, 1896, when said- commissioner fixed the 19th day of the said month for conducting the examination of said Terry on said charge; that at the time said complaint was filed, and at all the times thereafter in said count mentioned, the letter therein referred to was in the possession of the defendant herein, John EL Collins, and after the filing of said complaint, and on the day that it was filed, said commissioner issued a subpoena in said action against said Terry, directing said Collins to appear before him on the said 19th day of November, 1896, as a witness on the part of the United States, and also issued an order, in writing, directing said Collins to deliver to Deputy United States Marshal B. T. Alford said letter, said order reciting that said letter was needed on the part of the United States in said action; that said subpoena and order were duly served upon said Collins on said 14th day of November, 1896; but that said Collins willfully and corruptly refused to deliver said letter to said Alford-or said commissioner. The second count is similar to the first, except that it charges the defendant with a willful and corrupt refusal to obey a subpoena duces tecum, issued in the same action, and under the same circumstances, as were the subpoena and order mentioned in the first count. A demurrer has been interposed to the indictment, on the ground that the alleged complaint filed before the commissioner, being upon information and belief, was, in contemplation of law, no complaint at all, and therefore the commissioner was without jurisdiction to issue the subpoenas in question.

Section 1014 of the Bevised Statutes of the United States provides that, for any crime against the United States, the offender may by any one of certain officers, therein named, and agreeably to the usual mode of process against offenders in such state, be held for trial before such court of the United States as has cognizance of the offense. It -has been repeatedly held that it was the intention of congress, by this section, “to assimilate all the proceedings for holding accused persons to answer, before a court of the United States, to the proceedings had for similar purposes by the laws of the state where the proceedings should take place.” U. S. v. Rundlett, Fed. Cas. No. 16,208; U. S. v. Harden, 10 Fed. 803 ; U. S. v. Horton, Fed. Cas. No. 15,393. To determine, therefore, the question now before the court, reference must be had to the statutes and decisions of California.

Under what circumstances, then, may a committing magistrate in'California subpoena a witness? This question is answered by section 13-26 of the Penal Code of said state, the pertinent provisions of which are as follows:

The word “complaint” is defined in section 806 of said Code, as follows:

*67 il will be observed that, according to this section, tbe allegation necessary to constitute a complaint is not tbe mere statement of an opinion, but tbe allegation of tbe fact “that a person has been guilty of some designated offense.” The word “complaint,” as de-, lined in said section, includes the accusation made before the committing magistrate, and also the information hied by the district attorney in the trial court. The requirements of the law as to the infor-, mat ion hied in the trial court are prescribed in section 809 of said Code. Verification by affidavit is not among these requirements, for the reason, I take if, that a district attorney is presumed to be acting, when he presents an information, under the sanctions of his official oath. The law, however, is different with reference to the complaint or accusation made before a committing magistrate, as appears from sections 811, 812, and 813, Pen. Code Cal., which are as follows:

In order, then, to authorize a magistrate, for the purposes of preliminary examination, to issue a subpoena, there must be laid before him a written complaint on oath, alleging that a person therein named has been guilty of some designated offense. Does the indictment in the case at bar show such a complaint? I think not. The affidavit made by Alford before Commissioner Prince, being upon information and belief, did not allege any material fact whatever, hut was simply the statement of affiant’s opinion.

Iteferring to an affidavit of this sort, the supreme court of California has said:

And even in the case of People v. Smith, 1 Cal. 11 , cited by the government, while, contrary to the later cases as hereinafter shown, ir is held that it is too late for the defendant to object, to the affidavit, on which was issued the warrant for his arrest, after examination and commitment, the court says:

*68 That such an affidavit docs not confer jurisdiction to issue a warrant of arrest has been expressly held by the supreme court of California. Ex parte Dimmig, 74 Cal. 164 , 15 Pac. 619 . In that case the court, referring- to the aforesaid sections 811, S12, and 813, says:

It is, however, urged by the government, that, while an affidavit upon information and belief may not confer jurisdiction to issue a warrant of arrest, it would confer jurisdiction to compel, by subpoenas, the attendance of witnesses before the magistrate, to enable him to determine whéther or not a warrant of arrest ought to issue. The authorities cited to support this contention are People v. Smith, 1 Cal. 9 , and People v. Staples, 91 Cal. 23 , 27 Pac. 523 . It seems to me, however, illogical to hold that a magistrate has jurisdiction to compel the attendance of witnesses to enable him to determine whether or not a person ought to be arrested for crime, and yet is without jurisdiction to order the arrest. Moreover, the doctrine of the two cases last cited, that the commitment authorizes the filing of an information, and that it is too late after the commitment to raise an objection to the sufficiency of the affidavit on which the arrest was originally made, has been practically, if not in terms, overruled by the later cases of People v. Christian, 101 Cal. 471 , 35 Pac. 1043 , and People v. Howard, 111 Cal. 655 , 44 Pac. 342 . I extract from the opinion in the latter case the following:

The court further says:

I liaye examined tlie federal decisions cited by the government, hut do not think they antagonize my views, as above indicated.

In U. S. v. Tinklepaugli, 28 Fed. das. 193, the claim was not made that the warrant in question was a nullity. This is shown by the following extract from the opinion:

This language could hardly be' applied to any process considered absolutely uull and void. If, in U. S. v. Martin, 17 Fed. 150 , or U. S. v. Reese, 27 Fed. Cas. 746 , which are the other federal decisions cited by the government, there be anything with which this opinion apparently conflicts, it is a sufficient answer to say that the decisions of said cases did not depend upon California laws.

The conclusion is io my mind irresistible that Alford’s affidavit or complaint before Commissioner Prince, being upon information and belief, did not confer upon the latter jurisdiction to make the order or issue the subpoenas set forth in the indictment, and therefore the demurrer thereto is sustained.