Keith v. Recorder's Court

ALLEN, P. J. Appeal by petitioner from an order and judgment denying a peremptory writ of prohibition and discharging an alternative writ theretofore issued. The petition for the writ of prohibition alleges that upon a complaint filed petitioner was arrested for the violation of an ordinance of the city of Santa Ana, and respondent court, after denying petitioner’s motion to dismiss and overruling a demurrer to the complaint, had set the cause down for trial. It is alleged that the complaint under which the arrest was made did not set forth facts constituting a public or any offense, and was defective in many other specified particulars; that the prosecution was barred by the provisions of section 801 of the Penal Code; for which reasons the court was without jurisdiction to hear and determine the cause. Conceding that the complaint upon which the criminal proceedings against petitioner were based was defective in all of the respects claimed, and on account thereof, or for any other reason, the jurisdiction of the recorder’s court was wanting, and by reason whereof a conviction thereunder could not be sustained, nevertheless, under the rule laid down in Lindley v. Superior Court, 141 Cal. 220, [74 Pac. 765], the remedy by appeal from an adverse judgment is a plain, speedy and adequate one in the ordinary course of law, by reason of which prohibition will not lie. There are no features presented in this record which should take the case out of the general rule, as was the ease in Ophir Silver Min. Co. v. Superior Court, 147 Cal. 467, [82 Pac. 70], The mere fact that the appeal would lie only to the superior court of Orange county, which court had once determined the ques *382 tions presented adversely to petitioner, presents no reason for tailing the case out of the rule. If, as claimed, that court erred when the case was before it on application for this writ, we may not assume that upon an appeal from the judgment, and after more mature consideration, it will continue in such error. In addition, the writ of habeas corpus is always available to one convicted without legal warrant, and in criminal proceedings instituted before an inferior court the sufficiency of the complaint can be considered upon an application for such writ. (Ex parte Greenall, 153 Cal. 767, [96 Pac. 804].) We see no error in the record, and the judgment is affirmed. Shaw, J., and Taggart, J., concurred.