Cowell v. Patterson

Adams, J. 1. habeas corpus: waiver, It is undoubtedly the right of a person brought before a magistrate for preliminary examination to waive the examination. It follows that in such case no examination should be held. The defendant must be considered as admitting, for the purpose of dispensing with the examination, and for no other, that the testimony, if taken, would be sufficient to justify the magistrate in holding him. The petitioner claims the right in this proceeding to-raise the question of the sufficiency of the evidence to justify his being held. He relies upon section 3482 of the Code. That section provides that, in a proceeding upon habeas corpus, the petitioner may deny the sufficiency of the testimony to justify the action of the committing magistrate, and that, upon the trial, the testimony taken before the magistrate may be given in evidence in connection with, any other testimony which may then be produced. , We infer that the judge who acted upon the petitioner’s application refused to allow him to introduce testimony upon the ground that he waived the preliminary examination. Without stopping to inquire whether it was properly shown to the judge that such examination was waived, we have to say that, if waived, we think it should not preclude the petitioner from a hearing upon testimony in the proceeding upon habeas corpus. It is true that section 3482 provides for tendering an issue as to the sufficiency of the testimony to justify the action of the committing magistrate. Now, if the petitioner admitted, by his waiver, that the testimony, if taken, would be sufficient, it might seem that he should not afterward be heard to aver to the contrary. But the same section provides that [517] other testimony may be produced. So the real question to be tried is as to whether the petitioner ought to be held, in view of all the testimony that may be produced; and it is clear that the petitioner should he discharged, in view of such testimony, if it appeared that he ought not to he held, even if the testimony taken simply before the magistrate showed otherwise. The presumption against him arising from a waiver ought not to be stronger than in such a case. We think, therefore, that the judge erred in refusing to hear testimony. 2_, warrant' The point made by the petitioner in regard to the sufficiency of the warrant of commitment we do not think is well taken. The warrant runs to the sheriff of Em. met county, as it, should do. It authorizes him to confine this petitioner in the jail of the next most convenient county. The petitioner shows that he is confined in the jail of Kossuth county. We must presume that that is the next most convenient county. The defendant is the deputy sheriff of Kossuth county, and jailer. In view of the presumptions and conceded facts, we think that the warrant shows a sufficient justification. But for the error in refusing to hear testimony the case must be Reversed.