In re Driggs

Court of Appeal of California, Second DistrictApr 26, 1909
10 Cal.App. 445 (Cal. Ct. App. 1909)
10 Cal.App. 445102 P. 542

Crim. No. 125.

April 26, 1909.

APPLICATION for a writ of habeas corpus to determine the legality of a commitment by a magistrate to the sheriff of the County of Los Angeles.

The facts are stated in the opinion of the court.

C. F. McNutt, and Noleman Smyser, for Petitioner.

J. D. Fredericks, District Attorney, and W. J. Ford, Deputy District Attorney, for Respondent.

The complaint filed before the magistrate was sufficient. The instrument alleged to have been forged was such as might be made the basis of fraud after utterance. ( People v. Collins, 9 Cal.App. 622, [ 99 P. 1109], and cases cited.) The delivery of the instrument by petitioner to the notary public was a representation of its genuineness and an utterance of the alleged forged instrument in contemplation of law. Such delivery to a public officer cannot be said to be a delivery to a private agent. ( Homan v. Wayer, 9 Cal.App. 123, [ 98 P. 80].) The record of the instrument, by whomsoever requested, was constructive notice of such record, and the absence of a disavowal thereof might be regarded by the magistrate as evidence tending to show a ratification or adoption of the act. The expert evidence, under, the circumstances of the case — the death of the principal having intervened — was competent to establish the offense without preliminary proof of absence of authority to sign the name of the person sought to be charged.

In applications for writs of this character, we will not enter into an examination of the record with a view of determining whether or not the testimony, in our opinion, warrants the commitment, but rather into an examination of the record to determine whether or not there was testimony from which the examining magistrate was warranted in acting. In other words, is there evidence in the record tending to show the commission of an offense and petitioner's criminal connection therewith from which may be inferred a reasonable probability of the petitioner's guilt?

Writ denied.