32. Same-Made under duress, does not estop defendant.

33. Same-What is no bar to second prosecution.

34. Same-What practice is condemned.

35. Statement by defendant-Conditions surrounding.

36. Same-Waiver of right.

1. Committing magistrate-Duty to hold preliminary examination. Committing magistrate is specially enjoined by law to hold preliminary examination of person who has been regularly charged with commission of public offense, and who has been arrested and brought before justice of peace.-People v. Barnes, 66 Cal. 594, 595, 6 Pac. 698.

2. Same-Must examine defendant.—According to provisions of Penal Code, a person, when arrested on charge of having committed public offense, must be examined before magistrate.-People v. Smith, 59 Cal. 365, 366.

As to statement of defendant and his waiver of right as to, see pars. 35, 36, this note.

3. Same -Must not discharge prisoner without examination.-Magistrate has no right to discharge prisoner, properly brought before him, without preliminary examination.-People v. Barnes, 66 Cal. 594, 596, 6 Pac. 698.

4. Same-Not acting judicially in holding examination.-Committing magistrate does not, in preliminary examination, act judicially, in technical sense, and mere irregularities therein will not vitiate it.Hamilton v. People, 29 Mich. 173, 1 Am. Cr. Rep. 618, 620.

As to preliminary hearing not a trial, see par. 21, this note.

5. Same-Refusal to hold examination— Mandamus.-Magistrate who refuses to proceed with preliminary examination may be compelled to do so by writ of mandamus. He has nothing to do with what has transpired before any other magistrate. That is not matter for his consideration, and it is entirely foreign to his duty in premises. People v. Barnes, 66 Cal. 594, 595, 6 Pac. 698.

6. Same-Same-What is no reason for. -Fact that grand jury is investigating charge of murder against accused is no reason why committing magistrate should refuse to conduct preliminary examination upon complaint brought before him.-State ex rel. Matranga v. Bringier, 42 La. Ann. 1091, 10 L. R. A. 137, 138, 8 So. 279.

formal parts of the complaint.-People v. Miller, 177 Cal. 404, 170 Pac. 817.

8. Same-Informing defendant of right to counsel.-It is unnecessary for the magistrate at a preliminary examination to go through the formality of advising the accussed of his right to counsel, when he has already employed an attorney who is present when the case is called.-People v. Stein, 23 Cal. App. 108, 137 Pac. 271.

As to presumption that defendant was informed, see par. 13, this note.

9. Same - Same — Substantial compliance with duty is shown where the magistrate advised the accused that they were entitled to counsel at every stage of the proceedings; that they were not required to talk or make any statement, or to take the witness stand as witnesses, but that if they did so they would be subject to crossexamination by the district attorney and also by the court; that they could call such witnesses as they wished to testify in their behalf. He then asked if they had an attorney, and receiving a negative answer, proceeded with the examination.-People v. Breshi, Cal. App., 186 Pac. 361.

10. Right to counsel-Confined to persons in custody.-Courts have no jurisdiction over persons charged with crime, unless in custody, actual or constructive. The right to counsel, therefore, is confined to persons charged with public offense only when in custody.-People v. Redinger, 55 Cal. 290, 298, 36 Am. Rep. 32.

11. Same-Estoppel of defendant.-If a German, who has very limited knowledge of English language, is up on preliminary examination, and is informed by magistrate of nature and character of proceedings about to take place, and his answers to interrogatories put to him at time by magistrate indicate full comprehension, on his part, of such proceedings, and he at time declines aid of counsel, he can not afterward be heard to say that he did not know or understand that he had right to counsel at such preliminary examination, and that he did not hear or understand magistrate inform him that he had such right.-People v. Young, 108 Cal. 8, 10, 41 Pac. 281.

12. Same-Magistrate is not required to appoint counsel at the request of the defendant at a preliminary examination. All that is required is, that upon the request of the defendant, he shall require a peace officer to take a message to any counsel in the township or city the defendant may name, and where defendant was instructed by the magistrate as to his right to counsel, but made no request for time to procure the same, and announced himself ready to proceed, he waived his right as to time to procure counsel.-People v. Crowley, 13 Cal. App. 322, 324, 109 Pac. 493.

13. Same-Presumption that accused was informed of. In absence of showing to contrary, it will be presumed that magistrate

before whom defendant was first brought after his arrest duly informed him of his right to aid of counsel in every stage of proceedings.-People v. Figueroa, 134 Cal. 159, 160, 66 Pac. 202.

14. Same-Refusing opportunity to procure, effect of.-Under our law, every person accused of felony is entitled to aid of counsel, whether imprisoned or admitted to bail, and refusal of opportunity to procure such counsel amounts to deprivation of important right essential to his safety. -People v. Napthaly, 105 Cal. 641, 645, 39 Pac. 29.

15. Same-Where a lawyer is defendant. -Where defendant brought up for preliminary examination is a lawyer, there is no need of informing him of right to have counsel, or of continuing case to permit him to procure such counsel, where he has asked for continuance. The very fact that defendant asked for continuance to procure counsel is evidence of his knowledge of his right thereto, and obviates necessity of his being informed thereof. But, under constitution and law, lawyer accused of crime is equally entitled with other persons in every state of his trial to presence and aid of counsel, "to appear and defend in person and with counsel." The rights of individuals in this respects are not to be gaged by their profession or occupation.— People v. Napthaly, 105 Cal. 641, 644, 39 Pac. 29.

16. Same-Whether imprisoned or admitted to bail.-Under our law, every person accused of felony is entitled to aid of counsel, whether imprisoned or admitted to bail, and refusal of opportunity to procure such counsel amounts to deprivation of important right essential to his safety.-People v. Napthaly, 105 Cal. 641, 645, 39 Pac. 29.

As to

17. Preliminary examination right of accused to.-The right of a person accused of a public offense to a preliminary examination as to the matters charged in the complaint was unknown to the common law; it is purely a matter of constitutional or statutory provision.-Holt v. People, 23 Colo. 1, 45 Pac. 374; State v. Gottleib, 21 N. D. 179, 129 N. W. 460; State v. Hart, 30 N. D. 368, 152 N. W. 372; State ex rel. Durner v. Huegin, 110 Wis. 189, 239, 62 L. R. A. 700, 85 N. W. 1046; State v. Solomon, 158 Wis. 146, Ann. Cas. 1916E, 309, 147 N. W. 640, 148 N. W. 1095.

18. Same- Same A substantial right, and has regard to the charge preferred in the complaint.-People v. Christensen, 101 Cal. 475, 35 Pac. 1043; People v. Howard, 111 Cal. 655, 44 Pac. 342; State v. Jensen, 34 Utah 166, 96 Pac. 1085; State v. Hoben, 36 Utah 186, 102 Pac. 1000; State v. Pay, 45 Utah 411, Ann. Cas. 1917E, 173, 146 Pac. 300.

See, also, discussion and authorities in note Ann. Cas. 1916E, 312-317.

19. Same- Defendant as witness.-Defendant, on preliminary examination, may become witness for or against himself, and if his testimony is voluntarily given, it may be used against him on trial.-People v. Kelley, 47 Cal. 125, 126.

As to statement by defendant, see pars. 35, 36, this note.

20. Same-Legislative power.-The legislature shall have power to provide for taking, in presence of party accused and his counsel, of depositions of witnesses in criminal cases other than in cases of homicide, when there is reason to believe that witness, from inability or other cause, will not attend at trial.-Cal. Const. 1879, art. I, § 13, 1 Henning's General Laws (3d ed.), p. xxxiii.

21. Same-Not at trial.-Preliminary examination provided for by law is in no sense trial of person accused of crime. It is not even necessary that person charged with having committed crime, on being brought before magistrate, should be asked to plead or enter plea of guilty or not guilty to complaint.-Latimer v. State, 55 Neb. 609, 612, 70 Am. St. Rep. 403, 405, 7-6 N. W. 207; Ex parte Garst, 10 Neb. 78, 2 Am. Cr. Rep. 618, 4 N. W. 511.

As to magistrate not acting judicially, see par. 4, this note.

22. Same-Object of preliminary examination is to ascertain whether crime charged has been committed, and if So, whether there is probable cause to believe that accused committed it.-Latimer V. State, 55 Neb. 609, 612, 70 Am. St. Rep. 403, 405, 76 N. W. 207; Ex parte Garst, 10 Neb. 78, 2 Am. Cr. Rep. 618, 619, 4 N. W. 511.

23. Same-Rule of reasonable doubt.Rule that where there is doubt as to guilt of accused he is entitled to benefit of it does not apply in preliminary examinations. It is sufficient if testimony shows to satisfaction of magistrate a probable case of guilt on part of accused.-Marks v. Sullivan, 8 Utah 406, 20 L. R. A. 590, 592, 33 Pac. 224. 24. Same-Statute awarding, is for benefit of accused.-Statute awarding one accused of crime right to preliminary examination was enacted for benefit of accused. Such examination is rightly created-a privilege granted by law to every one accused of crime, but it is privilege which one may waive.-Latimer v. State, 55 Neb. 609, 613, 70 Am. St. Rep. 403, 405, 76 N. W. 207; State v. Pay, 45 Utah 411, Ann. Cas. 1917E, 173, 146 Pac. 300.

25. Same Technical regularity and exactness not required.-It is not necessary that papers and proceedings on preliminary examination should be technically regular and exact, like papers in proceedings on final trial. It is not necessary that they should set forth offense in all its details and with perfect and exhaustive accuracy. -State v. Moon, 71 Kan. 349, 80 Pac. 597. 26. Waiver of examination-By pleading guilty.-Defendant brought before examin

ing magistrate waives right to preliminary examination by pleading guilty.-State v. Kornstett, 62 Kan. 221, 61 Pac. 805; Latimer v. State, 55 Neb. 609, 613, 70 Am. St. Rep. 403, 405, 76 N. W. 207.

As to effect of waiver of right to preliminary examination, see note, Ann. Cas. 1917E, 183.

As to waiver of right to preliminary examination, see discussion and authorities in note Ann. Cas. 1917E, 179.

27. Same-By failure to file motion to set aside indictment or information, under provisions of sections 995 and 996, post, defendant is precluded from thereafter raising any of the statutory grounds of objection, including the objection that defendant was not accorded to preliminary examination.-In re McConnell, 83 Cal. 558, 23 Pac. 1119; People v. Ronsse, 26 Cal. App. 100, 146 Pac. 65.

28. Same-By giving bond for appearance to answer in superior court, without demanding a preliminary examination, because a person can not for his own convenience, make a stipulation to appear at a future day, and thereafter be heard to complain that he was not immediately taken before a magistrate and given a preliminary hearing.-Nowak V. Waller, 56 Hun (N. Y.) 647, 10 N. Y. Supp. 199; affirmed 132 N. Y. 590, 30 N. E. 868.

See, also, authorities in note Ann. Cas. 1917E, 182.

29. Same-By giving recognizance to appear for examination and then failing to appear for that purpose.-State v. Rabens, 79 S. C. 542, 60 S. E. 442, 1110; Com. v. Delamater, 13 Pa. Co. Ct. Rep. 152, 2 Pa. Dist. Rep. 562.

30. Same-By pleading to merits without making any objection to the failure to hold a preliminary examination.-See In re McConnell, 83 Cal. 558, 23 Pac. 1119; People v. Ronsse, 26 Cal. App. 100, 146 Pac. 65; State v. Clark, 4 Idaho 7, 35 Pac. 710; Dinsmore v. State, 61 Neb. 418, 85 N. W. 445; Reinoehl v. State, 62 Neb. 619, 87 N. W. 355; State v. Spencer, 15 Utah 149, 49 Pac. 302; State v. Norman, 16 Utah 457, 52 Pac. 986.

For other authorities see note, Ann. Cas. 1917E, 181.

Cal. 705, 707; Kalloch v. Superior Court, 56 Cal. 229, 234.

32. Same-Made under duress, does not estop defendant to object to the want of a preliminary hearing.-In re Malison, 36 Kan. 729, 14 Pac. 144.

As to what does and does not constitute waiver under duress, see note, Ann. Cas. 1917E, 183.

33. Same-What is no bar to second prosecution.—If defendant charged with felony waives examination, and is committed without witnesses for people having been examined, this is not bar to another examination.-Ex parte Walsh, 39 Cal. 705,

707.

34. Same-What practice is condemned. -Practice of admitting persons charged with felony to bail without examining witnesses for people is not authorized. The very purpose of preliminary examination is to be informed of circumstances attending commission of alleged crime and to properly determine what amount of bail would probably secure attendance of accused to answer charge.-Ex parte Walsh, 39 Cal. 705, 707.

35. Statement by defendant-Conditions surrounding.-Act of 1851 regulating proceedings before committing magistrate upon preliminary examination contains no provision authorizing or permitting an oath to be administered to person accused. The point of time in course of proceedings at which he may make or decline to make this statement is fixed by statute. It must be after depositions of witnesses, upon which warrant was issued, have been read to him. and when examination of witnesses on part of people, had in presence of accused, is closed. He must then be distinctly informed by magistrate that it is his right to make statement in relation to charge against him if he sees fit, but that he is at entire liberty to waive making such statements, and that his waiver can not be used against him on trial.-People v. Gibbons, 43 Cal. 557, 558.

36. Same -Waiver of right.-Chapter 7 of the old Criminal Practice Act provided that after witnesses for people should have been examined defendant might waive his right to make statement in relation to charge against him, but it did not provide for or contemplate total waiver of any examination into charge made against him in first instance. An inquiry, to some extent at least, would seem to have been required for purposes of public justice.Ex parte Walsh, 39 Cal. 705, 707.