Opinion
Civ. No. 853.
May 20, 1910.
APPLICATION for writ of review to justice's court of Pasadena Township, Los Angeles County.
The facts are stated in the opinion of the court.
Randall Gaines, for Petitioner.
It is alleged in the petitioner's affidavit that he was charged with the violation of an ordinance of Los Angeles county, claimed to have been committed in Los Nietos township in said county; that defendant; was arrested and taken before a justice of the peace in and for Pasadena township, and his cause set down for trial; that petitioner filed an affidavit and motion for a change of venue on the ground that the justice of the peace was biased and prejudiced and interested against him, and he could not have a fair and impartial trial before such justice; that expecting said motion to be granted he did not prepare for trial at the time set, which matter being brought to the attention of the justice he refused, notwithstanding the acquiescence on the part of the prosecuting officers, to continue the trial on account of the absence of the witnesses; that objection was made to proceeding further with the trial because it was claimed that the justice had lost jurisdiction by reason of the affidavit, which objection the justice overruled. It is alleged further that upon the trial he was convicted without the introduction of the evidence necessary in order to establish the offense, and that the court erred in giving certain instructions to the jury; that at the conclusion of the trial the jury found petitioner guilty; that from the judgment pronounced upon such verdict the petitioner appealed to the superior court of Los Angeles county; that upon the hearing of such appeal the judgment was by the superior court affirmed; and this writ is sought to review and annul the judgment of said justice.
The theory of petitioner is that the same effect should be given to section 1431 of the Penal Code as is given to section 833 of the Code of Civil Procedure, namely, that upon the filing of an affidavit showing bias and prejudice the justice must transfer the cause, and that he is without jurisdiction further to act. In the case of Lowrey v. Hogue, 85 Cal. 602, [24 P. 995], a distinction is drawn by our supreme court as between the two sections, and in which it is held that in a criminal action upon the facts stated in the affidavit the court is called upon to determine whether the reasons given support the conclusion, and for any abuse of discretion shown in relation thereto the defendant has a speedy and adequate remedy by an appeal to the superior court. In Ex parte Wright, 119 Cal. 401, [54 P. 639], a construction of section 1431 of the Penal Code is given, in which it is said the refusal of the justice to change the place of trial may have been error, and, if so, the prisoner has an ample remedy by appeal, but the justice did not exceed his jurisdiction in proceeding to trial after overruling the motion for a change of venue. This writ of review can only be granted when an inferior tribunal exercising judicial functions has exceeded its jurisdiction and there is no appeal. From the action of the court, either in passing upon the motion for a change of venue or in determining the sufficiency of the evidence to warrant a conviction, or in charging the jury as to the law of the case, the justice was acting within his jurisdiction, and for errors committed in its exercise this writ will not lie.
Writ denied.