Opinion
Application for writ of habeas corpus.
SYLLABUS
CRIMINAL LAW--MISDEMEANOR--JURISDICTION BY CONSENT--CHANGE OF PLACE OF TRIAL.
In a prosecution for misdemeanor, commenced before one justice of the peace, but transferred for trial to another justice of the same county, without any affidavit for the change, such as required by statute, (Cal. Penal Code, § 1431,) an appearance by the accused, and submission to the jurisdiction of the trial court, without any objection thereto, confers jurisdiction by consent on the trial court.
Jackson Hatch, J. V. Lewis, and Jones & Martin, for petitioner.
Chipman & Garter and L. V. Hitchcock, contra.
OPINION
THORNTON, J.
The petitioner was prosecuted for a misdemeanor, committed in violation of section 418 of the Penal Code. The prosecution was commenced before Justice of the Peace GEDNEY, for the county of Tehama, and by him transferred to the court of a justice of the peace named COMSTOCK, of the same county, for trial. The trial took place before Justice COMSTOCK, and resulted in the conviction of the petitioner. He is now imprisoned upon a commitment issued on such conviction, and this application is made to be discharged therefrom.
It is argued that the place of trial was changed in a mode not provided by law, and we are referred on this point to section 1431 of the Penal Code. It appears from that section that the place of trial can be changed on the affidavit of defendant, or on affidavits of other persons, showing the existence of a state of matters which, under the section cited, justifies such change. No affidavit was made in this case, and it is argued from this that Justice COMSTOCK had no jurisdiction to try the case. But the petitioner appeared before Justice COMSTOCK, was tried and convicted, without any objection to the jurisdiction. The offense (a misdemeanor) is charged to have been committed in Tehama county, and of such offenses every justice of the peace of that county has jurisdiction. Code Civil Proc. § 115. There is, then, no difficulty as to jurisdiction of the subject-matter, and under the circumstances of this case the petitioner, having appeared and submitted to the jurisdiction of the trial court without making any objection thereto, I am of opinion that the court had jurisdiction of the person of the petitioner by his consent, and it is settled law that consent can give jurisdiction of the party, though not of the subject-matter.
Though the point is not material here, I will say that, in my judgment, the complaint is sufficient, and sets forth facts constituting an offense. The judgment is not void, but regular in all respects. The prisoner can be discharged under it, after he is imprisoned, by paying the remainder of the fine due, after being credited at the rate of one dollar a day for as many days as he has suffered imprisonment.
Writ denied, and petitioner remanded.