of habitant of or resident within state," omitting word "usually," sufficiently avers matter of exception to operation of statute of limitations.-People v. Montejo, 18 Cal. 38. 11. Suspended sentence-Absence from state-Expiration of term-Revocation order suspending the execution of the sentence and releasing of the defendant on probation can not be made by the court in a case where the convicted person went out of the state and remained away until after the expiration of the term for which he had been sentenced and then paroled, because the power to revoke or modify the order of suspension of sentence is limited to the period of probation, and the term of probation does not cease to run during the absence of the convicted person from the state. People ex rel. Lindauer v. O'Donnell, 37 Cal. App. 192, 174 Pac. 102; In re Webb, 89 Wis. 354, 46 Am. St. Rep. 486, 27 L. R. A. 356, 63 N. W. 177. As to all judicial paroles being ultra vires, and all statutes attempting to confer upon judges the power to parole on probation convicted and sentenced persons being unconstitutional, see 5 The Constitutional Review, 131. 12. The above decision cites no cases in support of reasoning and conclusions reached, is thought to be unsound on principle and against the decided weight of authority, nearly all other cases that have discussed the subject holding a contrary opinion. In North Dakota the exact question, upon the exact state of facts was considered, and the contrary doctrine was held. In that case a person was convicted, assessed a fine and costs with six months jail sentence. The fine and costs were paid, the party departed from the state and remained away a year; on her return to the state the order suspending the execution of the jail sentence was revoked and the prisoner arrested and confined in execution of the jail sentence. This proceeding was upheld on habeas corpus proceedings.-Ex parte Hart, 29 N. D. 38, L. R. A. 1915C, 1169, 149 N. W. 568. 13. The same principle has been applied in Fuller v. State, 100 Miss. 811, Ann. Cas. 1914A, 98, 39 L. R. A. (N. S.) 243, 57 So. 806; State v. Abbott, 87 S. C. 466, Ann. Cas. 1912B, 1189, 33 L. R. A. (N. S.) 112, 70 S. E. 6, and perhaps elsewhere. § 803. INDICTMENT FOUND, WHEN PRESENTED AND FILED. indictment is found, within the meaning of this chapter, when it is presented by the grand jury in open court, and there received and filed. History: Enacted February 14, 1872, re-enactment of § 100 Criminal CHAPTER III. THE INFORMATION. $806. Complaint defined. $ 807. Magistrate defined. § 808. Who are magistrates. § 806. COMPLAINT DEFINED. $809. Filing information after examination and commitment. § 810. Information, when lost, copy may be filed. The complaint is the allegation in writ ing made to a court or magistrate that a person has been guilty of some designated offense. History: Enacted February 14, 1872, founded on § 101 Criminal 1. Complaint-Allegation constitute complaint is not mere statement of opinion, but allegation of fact "that per son has been guilty of some designated offense."-United States v. Collins, 79 Fed. 65, 67. 2. The offense charged need not be stated in technical language, nor in such specific terms as are required in an indictment or information; it is sufficient if the jurisdictional facts appear, and that the offense charged is stated in ordinary language. The language need not even be concise, or without repetition. The statement may be very imperfect and still be good. The only test is: Are all the elements constituting the offense charged stated?-State v. Pay, 45 Utah 411, Ann. Cas. 1917E, 173, 146 Pac. 300. See, also, par. 17, this note. 3. Same- - Complaint and affidavit upon information and belief do not allege any material fact constituting offense, but are simply statement of affiant's opinion.United States v. Collins, 79 Fed. 65, 67. 4. Same-Definition of complaint.-Complaint, as defined in this section, includes accusation made before committing magistrate and also information filed by district attorney in trial court.-United States v. Collins, 79 Fed. 65, 67. 5. Same-Defects in, not ground to justify setting aside of information. When a charge has been examined by a magistrate, and the evidence taken, and the examination warrants holding the defendant to answer, the imperfections of the complaint are cured.-People v. Warner, 147 Cal. 548, 82 Pac. 196, following People v. Cole, 127 Cal. 545, 59 Pac. 894, and People v. Lee Look, 143 Cal. 216, 76 Pac. 1028, and approving language in People v. Lee Look case declaring that if there is anything inconsistent with these views in the case of People v. Christian, 161 Cal. 471, 35 Pac. 1043, and People v. Howard, 111 Cal. 655, 44 Pac. 342, they must be considered overruled. 6. Not defective merely because it is signed by district attorney without addition of words "of such county," where caption and body of indictment state county in which indictment was found, that being sufficient to show that district attorney who signed it was acting as district attorney for that county.-People v. Ashnauer, 47 Cal. 98, 100. 7. Same-Ground-work and limitations of prosecution-Rule.-Complaint lodged with magistrate constitutes ground-work of whole superstructure to be thereafter built thereon, and draws lines which must circumscribe limits prosecution can take. Defendant, in other words, may be competently informed against and tried for any offense charged in complaint or included therein, but beyond that limitation prosecution can not go.-People v. Howard, 111 Cal. 655, 660, 44 Pac. 342. See People v. Christian, 101 Cal. 471, 476, 35 Pac. 1043. 8. Overruled in People v. Lee Look, 143 Cal. 216, 218, 219, 76 Pac. 1028, holding that where information is based on commitment, question of sufficiency of deposition or complaint to justify original warrant of arrest is immaterial. 9. Same Same — Magistrate authorized to hold defendant to answer for any offense which evidence shows to have been com mitted; and his power is not limited to such offenses as are embraced within crime charged in complaint.-People v. Wheeler, 73 Cal. 252, 255, 14 Pac. 796. See, post, § 872 and note. As to commitment by magistrate, în general, and their powers, see, post, § 872 and note. 10. Overruled in People v. Christian, 101 Cal. 471, 475, 35 Pac. 1043. 11. Compare: People v. Lee Look, 143 Cal. 216, 220, 76 Pac. 1028, in turn overruling People v. Christian, supra, and People v. Howard, 111 Cal. 655, 44 Pac. 342, which follows rule in People v. Christian, supra, and restoring former rule as declared in People v. Wheeler, supra. 15. Same-Verification of held not to be necessary. In re Mills Sing, 13 Cal. App. 736, 110 Pac. 693. 16. Same-Same- Illegal verification of before magistrate can not avail the defendant, after commitment, when called upon in the superior court to make his defense.People v. Mullaley, 16 Cal. App. 46, 116 Pac. 88. 17. Designated offense — · Complaint need not charge offense with all technical nicety of indictment or information, but it must state essential elements of crime to common certainty. People v. Howard, 111 Cal. 655, 662, 44 Pac. 342. See People v. Velarde, 59 Cal. 457; People v. Wheeler, 65 Cal. 77, 2 Pac. 892; People v. Staples, 91 Cal. 23, 27 Pac. 523; People v. Christian, 101 Cal. 471, 475, 35 Pac. 1043. See, also, par. 2, this note. 18. Justice of peace-May administer and certify oath.-Justice of peace is authorized by law to administer and certify to oath of complainant.-People v. Le Roy, 65 Cal. 613, 615, 4 Pac. 649. As to who are magistrates, see, post, § 808 and note; 5 W. & P. 4271-4273; 6 W. & P. 5421. § 807. MAGISTRATE DEFINED. A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense. History: Enacted February 14, 1872, re-enactment of § 102 Criminal Practice Act 1851, Stats. 1851, p. 223. § 808. WHO ARE MAGISTRATES. The following persons are magis trates: 1. The justices of the supreme court; 2. The judges of the superior courts; 3. Justices of the peace; 4. Police magistrates in towns or cities. History: Enacted February 14, 1872, founded on § 103 Criminal 1. As to construction of section-No distinction between magistrates as such.Code makes no distinction, in treating of powers and duties of magistrates, between different judicial officers who may act in such capacity.-People v. Crespi, 115 Cal. 50, 51, 54, 46 Pac. 863. 2. Charter of City and County of San Francisco-Jurisdiction of police courts.Charter of City and County of San Francisco having created police court, by that very creation any judge thereof ipso facto became vested with jurisdiction to conduct examination for felonies under general law McV. of state as magistrate.-Elder Dougald, 145 Cal. 740, 743, 79 Pac. 429. See People v. Crespi, 115 Cal. 50, 54, 46 Pac. 863; People v. Cohen, 118 Cal. 74, 78, 50 Pac. 20. See, also, pars. 16, 17, this note. 3. City justices Jurisdiction of.-City justices, as well as county justices, form part of judicial system of state, and both come equally within provisions of article VI, section 11, of constitution, which authorizes legislature to "determine number of justices of peace to be elected in townships, incorporated cities and towns, or cities and counties," and to fix "by law their power, duties, and responsibilities."-People v. Cobb, 133 Cal. 74, 76, 65 Pac. 325. People ex rel. Wood v. Sands, 102 Cal. 12, 15, 36 Pac. 404; Kahn v. Sutro, 114 Cal. 316, 331, 334, 33 L. R. A. 620, 46 Pac. 87; Rauer v. Williams, 118 Cal. 401, 408, 50 Pac. 691; In re Mitchell, 120 Cal. 384, 390, 52 Pac. 799. See 5. Habeas corpus-Commitment by magistrate.-Writ denied on authority of People v. Lee Look, 143 Cal. 218, 76 Pac. 1028; People v. Warner, 147 Cal. 548, 82 Pac. 196; and this and §§ 103 C. C. P. and 811 Penal Code, et seq.-Ex parte Stevens, 16 Cal. App. 424, 117 Pac. 1127. 6. Justices of the peace and superior judges are alike constituted magistrates for purpose of examining witnesses and proceeding in other respects in accordance with law.-Ex parte Walsh, 39 Cal. 705, 706. 7. Same-Judges of district courts, prior to establishment of superior courts, were magistrates vested with authority to hold accused persons to answer. - Ex parte Granice, 51 Cal. 375. 8. Judges of supreme court, etc.-Powers of as magistrates.-Judges of supreme court, judges of superior court, justices of peace, and police judges, when sitting as magistrates, have jurisdiction and powers conferred by law upon magistrates, and not those which pertain to their respective judicial offices.-People v. Crespi, 115 Cal. 50, 51, 54, 46 Pac. 863. sitting as magistrate, has no more right to call in county clerk or other officer to administer oaths before him than would justice of peace or police judge.-People v. Cohen, 118 Cal. 74, 79, 50 Pac. 20. 10. Superior judge, when sitting as magistrate, possesses no other or greater powers than are possessed by any other officer exercising functions of magistrate. -People v. Cohen, 118 Cal. 74, 78, 50 Pac. 20. 11. Justices of peace-Part of constitutional judiciary of state, and determination by legislature of their number in incorporated city is not subject to distinction between general and special laws. In re Mitchell, 120 Cal. 384, 390, 52 Pac. 799. See People v. Ransom, 58 Cal. 558; Bishop v. Oakland, 58 Cal. 572; Jenks v. Oakland, 58 Cal. 576; Coggins v. Sacramento, 59 Cal. 599; Kahn v. Sutro, 114 Cal. 316, 33 L. R. A. 620, 46 Pac. 87. 12. Magistrates-Powers of, how derived. -Magistrates derive their power and jurisdiction from constitution, operating with acts of legislature upon subject.-People v. Crespi, 115 Cal. 50, 51, 54, 46 Pac. 863. 13. Same-Office of magistrate is purely statutory one, and powers and duties of functionary are solely those given by statute; and those powers are precisely same, whether exercised by virtue of one office or that of another; statute makes no sort of distinction between them.-People v. Cohen, 118 Cal. 74, 78, 50 Pac. 20. 14. Police judges in towns and cities are magistrates.-People v. Crespi, 115 Cal. 50, 51, 54, 46 Pac. 863. 15. Same-Police court of Los Angeles is legally existing court organized under act of March 18, 1885, generally known as the "Whitney Act" (Stats. 1885, p. 213) and act of February 18, 1897 (Stats. 1897, p. 28), entitled "An act to authorize any city, or city and county, of this state to take its census," does not expressly, directly, or indirectly repeal prior act.-In re Mitchell, 120 Cal. 384, 385, 395, 52 Pac. 799. 16. Police judges of San Francisco.—If by statute of 1893 relative to police court of the city and county of San Francisco, jurisdiction is said not to have been conferred upon police judges to hold examinations in misdemeanors, the oversight or deficiency is fully made good and repaired by provisions of constitution and code, for police judges have same jurisdiction, drawn from same sources, as that conferred upon and used by justices of peace derived from their character as magistrates.-People v. Crespi, 115 Cal. 50, 51, 54, 46 Pac. 863. See, also, par. 2, this note. 17. Police judges of San Francisco are empowered to sit and act as magistrates under the provisions of this section.People v. Fallon, 154 Cal. 743, 99 Pac. 202. § 809. FILING INFORMATION AFTER EXAMINATION AND COMMITMENT. When a defendant has been examined and committed, as provided in section eight hundred and seventy-two of this code, it shall be the duty of the district attorney, within thirty days thereafter, to file in the superior court of the county in which the offense is triable an information charging the defendant with such offense. The information shall be in the name of the people of the state of California, and subscribed by the district attorney, and shall be in form like an indictment for the same offense. History: Enacted April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 12. INFORMATION AFTER PRELIMINARY 10, 11. Information-As substitute for ordinary indictment, creature of new constitution. 12. Juvenile act-This section applies. 13-15. New information not included. 16. Order of commitment-Ground of information. 17. Penalty-For violation of section. 32, 33. Same-Cases compared. 34. Same Sufficiency of information, when not affected by complaint or informalities in warrant of arrest. 35, 36. Same Same Information may be filed under commitment. 37. Same-Information may be filed for true offense, notwithstanding wrong designation. 38, 39. Same-Not obliged to wait for filing of stenographic reporter's notes. 40. Same-Offenses disclosed by depositions-Information for false impris onment, etc. 41. Failure of magistrate to return papers to court, effect of. 42. Filing of information-Gives court 43. Same-Fact that grand jury was in 45. Grand jury, investigation by-Indepen- 46. Information-As to when properly set aside. 47. Same Same-Defects not ground. in complaint 48. Same-Same-Information subscribed by person acting as deputy. 49. Same--Same-Information signed in name of district attorney. 50. Same-Same-Information after preliminary examination-Indorsement of names of witnesses unnecessary. 51. Same Same- Omission of name of county in title, effect of. 52. Same-Offenses committed prior to adoption of new constitution. 53. Same Signature and designation of district attorney. 54. Same State, omission of name of, not material, when. 55. Limitations for prosecuting misde meanor. 56. Same-Motion to dismiss prosecution. P. C.-54 849 I. IN GENERAL CONSTITUTIONALITY 1. Administrative and remedial proceedings-Must change from time to time with advancement of legal science and progress of society; and if people of state find it wise and expedient to abolish grand jury, and prosecute all crimes by information, there is nothing in our state constitution and nothing in fourteenth amendment to constitution of United States which prevents them from doing so (arguendo).— Kalloch v. Superior Court, 56 Cal. 229, 240. See Rowan v. State, 30 Wis. 129, 11 Am. Rep. 559; Walker v. Sauvinet, 92 U. S. 90, 23 L. ed. 678; United States v. Cruikshank, 92 U. S. 542, 554, 23 L. ed. 588. Same-Changes 2. in, not unconstitutional. Remedies must always be under control of legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with rules of practice and heard only by courts in existence when its facts arose; therefore, so far as mere modes of procedure are concerned, party has no more right in criminal than in civil action to insist that his case shall be disposed of under laws in force when act to be investigated is charged to have taken place.People v. Campbell, 59 Cal. 243, 245, 43 Am. Rep. 257. 3. Amendment of 1880- Effect of.Amendment to section (Stats. 1880, Pen. Pt. p. 10) is in no sense revision of entire code. -People v. Oates, 142 Cal. 12, 13, 75 Pac. 337. See People v. Parvin, 74 Cal. 549, 552, 16 Pac. 490; Beach v. Von Detten, 139 Cal. 462, 465, 73 Pac. 187. 4. Code authorizes proceeding by information only where defendant has been |