It is more in the nature of a final decree; and, if no appeal lies, this case affords an instance of a money decree against a party from which no relief can be had, no matter how unjust or oppressive. This ought not to be. It is no answer to this position to say defendant can have this decree against him reviewed on appeal or error, after final decree in the original cause. Of what avail would that privilege be to him then? The litigation might be protracted, and years elapse before any final decision could be reached. In the mean time he has been imprisoned for disobedience to the decree, or his property, under process of law, been subjected to the payment of the sum decreed. Nor does the fact an appeal is allowed impose any hardship not incident to other money decrees from which appeals may be prosecuted. On the theory alimony is for the immediate benefit of the wife, to enable her to prosecute or defend her suit against her husband on terms of equality, the only serious result would be to delay the litigation until the propriety of the decree for temporary alimony and solicitors' fees could be determined in the appellate court. On the contrary, if an appeal should be denied, it might subject defendant to very great hardships in many cases, as the sequel will show." 80 Ill. 523.

The allowance of alimony is largely discretionary with the trial court, and will, therefore, be interfered with by the appellate court only in cases of abuse of discretion. Ordinarily, in actions for divorce, the marriage relation is not controverted, and should frivolous appeals be taken, it will be an easy matter to impose such penalty as will put a stop to the practice. But in cases where the fact of marriage is the real issue no alimony should of right be paid until the fact of marriage or no marriage is properly determined, for the obvious reason that there can be no such thing as alimony unless the relation of husband and wife in fact exist. There is, however, some question as to the character of bond necessary to stay proceedings upon the order for the payment of alimony. With respect to that question, and to that only, there is some inconsistency in the opinions of the court, and upon that question, and that only, we desire to hear further argument, and for that purpose and to that extent only grant a rehearing. THORNTON, J.; McKINSTRY, J.; MORRISON, C. J.;

We concur: SHARPSTEIN, J.

MYRICK, J. I agree with the views presented by Ross, J., down to the reasons given for a rehearing. I am satisfied with the judgment heretofore given. I wish to add the following to what has been said in favor of the appellate jurisdiction of this court:

Independent of what has been already said, I am of opinion that under the present constitution there can be no question as to the appellate jurisdiction of this court in the case of an alimony order. I base this view on the terms of the constitution, viz., (article 6, § 5:) "The superior court shall have original jurisdiction in all cases in equity." Article 6, § 4: "The supreme court shall have appellate jurisdiction in all cases in equity." Wherever and whenever a superior court has jurisdiction to take any step or proceeding, or make any order, in any case in equity, of that step, proceeding, or order the

supreme court has appellate jurisdiction. The legislature may pro vide machinery; it may declare when the appeal may be taken, (as, in regard to orders which involve the merits or necessarily affect the judgment, it has done;) but neither by direct action nor by omission can the appellate jurisdiction of this court be abridged; it is given by the constitution in such plain and unequivocal words that it cannot be shorn off. If, then, an action to have the validity of an alleged marriage determined and declared, or for divorce, be a case in equity, it conclusively follows that any order, step, or proceeding which the superior court has jurisdiction to make in such action is subject to review by this court.

By way of contrast, and to show more clearly, if need be, the meaning of the above-quoted clauses of the constitution, I quote, as to probate matters, article 6, § 5: "The superior court shall have original jurisdiction of all matters of probate." Article 6, § 4: "The supreme court shall have appellate jurisdiction all such probate matters as may be provided by law."

*

*

in

In probate, appellate jurisdiction is given in such matters only as the legislature may provide; while in equity cases the appellate jurisdiction is as broad and extensive as is the original jurisdiction. It has been repeatedly held that where appellate jurisdiction is given, and no machinery is prescribed, the appellate court will furnish machinery, to the end that the right of review be not lost. Houghton's Appeal, 42 Cal. 35; People v. Jordan, 4 PAC. REP. 683, 773. As to whether the action now under consideration is a case in equity, has been considered in the opinion heretofore filed, and I do not deem any addition in that regard necessary or useful.

OPINION MODIFIED.

SHARON V. SHARON. (No. 9,984.)

Filed August 1, 1885.

In bank. Appeal from superior court, city and county of San Francisco. The opinion modified hereby is the opinion on rehearing, filed July 29, 1885, ante, 635.

W. H. L. Barnes, O. P. Evans, and Stewart & Herrin, for appellant.

Tyler & Tyler, D. S. Terry, Geo. Flournoy, and Walter Levy, for respondent.

BY THE COURT. Counsel for plaintiff feel aggrieved, and claim that the opinion as written charges them with willful perversion of facts. As that was not intended, and as the opinion goes into the reports, it is ordered that the expression "it is difficult to deal patiently with such perversions of facts" be stricken from the opinion.

(67 Cal. 231)

PEOPLE V. VIERRA. (No. 20,046.)

Filed July 28, 1885.

INFORMATION

CRIMINAL LAW PRELIMINARY EXAMINATION

CRIME, HOW

CHARGED. Where a person charged with the commission of a felony is, after preliminary examination, held to answer, the district attorney, in filing the information required by statute, (Pen. Code Cal. § 809,) is not bound to charge the defendant therein with the offense designated by the committing magistrate in his indorsement on the depositions taken on the preliminary examination, but may examine the depositions, ascertain the offense, and charge the same according to the facts as disclosed by the depositions.

Department 2. Appeal from superior court, county of Fresno. The Attorney General, for appellant.

Tupper & Tupper, for respondent.

THORNTON, J. The defendant was accused by information of murder, and was convicted of manslaughter. On his arraignment his counsel moved the court to set aside the information, on the ground that the commitment holding defendant to answer in the complaint filed in the committing magistrate's court ordered that the defendant be held to answer for the crime of manslaughter, and the information filed against him accuses him of murder. The defendant further moved that the district attorney be directed to file an information against defendant for manslaughter. In support of this motion, counsel for defendant read the complaint filed with the magistrate, which charged the defendant with murder, and also read the commitment and order of the magistrate indorsed on the complaint, which is in these words: "It appearing to me that the offense of manslaughter has been committed, and that there is sufficient cause to believe that Jose F. Vierra, the defendant, is guilty thereof; that the said defendant did willfully, unlawfully, and feloniously cut and stab about the abdomen one Manuel Maria, with a certain dirk-knife, about the abdomen, a human being, from the effects of which the said named, the said Manuel Maria, soon after died,-I order that the said Jose F. Vierra be held to answer to the same, and committed to the sheriff of the county of Fresno, and that he be admitted to bail in the sum of $3,000, and is committed to the sheriff of the county of Fresno until he give such bail."

The court denied the motion, and defendant excepted.

The proceeding by information for a capital offense is one which has come into use under the present constitution, adopted in 1879. Const. art. 1, § 8. Under the former constitution an indictment was required. Const. 1849, art. 1, § 8. The section of the present constitution authorizing the proceeding by information is as follows:

"Sec. 8. Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictinent, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county."

The defendant on his arrest must be taken before a magistrate, (Pen. Code, §§ 821, 822,) who must proceed to examine the case.

Pen. Code, §§ 858, 859, 860. The testimony of each witness, in cases of homicide, must be reduced to writing, as a deposition, by the magistrate, or under his direction. Pen. Code, § 869. The testimony must be authenticated in the mode set forth in the section last cited, and the depositions must be returned to the clerk of the court at which the defendant is required to appear, together with the warrant, undertakings of bail, etc. Pen. Code, §§ 869, 883.

It is provided, by section 872 of same Code that, when it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, the magistrate must make or indorse on the depositions an order, signed by him, to the following effect:

"It appearing to me that the offense in the within depositions mentioned (or any offense, according to the fact, stating generally the nature thereof) has been committed, and that there is sufficient cause to believe the within named A. B. guilty thereof, I order that he be held to answer to the same, and be committed to the sheriff of the county of —

It is further provided (section 809, Pen. Code) that

"When a defendant has been examined and committed, as provided in section 872 of this Code, it shall be the duty of the district attorney, within thirty days thereafter, to file in the superior court of the county in which the offense is triable an information charging the defendant with such offense."

The contention of defendant here is that the offense with which the defendant must be charged by the information to be filed is the offense designated by name by the committing magistrate in the indorsement on the depositions required to be made by section 872 of the Penal Code, and not the offense disclosed by the depositions. We use the expression, "disclosed by the depositions," for that, in our opinion, is the signification of the words, "in the depositions mentioned," used in section 872. The offense by name need not be, nor is it usually, mentioned or designated by name in the depositions. The facts showing the nature and degree of the offense appear therein. Must the district attorney act on the facts as appearing in the depositions, or must he take the judgment of the committing magistrate thereon as shown by the name by which he shall designate the offense in his indorsement? The committing magistrate is usually a justice of the peace, either unlearned in the criminal law, or acquainted with it to a limited extent. It would be a strange requirement which permitted the justice to determine the offense for which the defendant should be prosecuted, instead of the district attorney, who is selected on account of his learning in the law, and especially charged with duties requiring an acquaintance with the criminal law. In England, where prosecutions were allowed by information, they were made by the attorney general, or by the solicitor general, when the office of attorney general was vacant, or by the king's coroner or attorney in the king's bench. The officers first named acted on their own official discretion, without the interference of the court, and without previous examinav.7p,no.11-41

tion. Bish. Crim. Proc. § 143, and Bl. Comm. 308. Such proceeding was only allowed in England in cases of misdemeanor, except misprision of treason, and was not permissible in any felony. But the higher the nature of the offense, it is clear that, for the protection of defendant, as well as of the state, the duty should be vested upon an officer acquainted with the law concerning crimes and offenses.

It may be conceded that the power to designate the offense for which the defendant is to be put upon his trial might be vested by the legislature in the committing magistrate; but the statute must be expressed in terms other than those in which we find them in the Code, to justify this court in coming to such a conclusion.

In our opinion section 809 refers to the offense shown by the testimony disclosed in the depositions taken on the preliminary examination before the committing magistrate, and not to the offense designated by name, or even generally, by such magistrate in his indorsement made on the depositions. It will be observed that the offense is to be designated according to the fact. Where is the fact to be found? Manifestly in the testimony contained in the depositions. If the justice named an offense which the testimony had no tendency to show had been committed, must the district attorney still charge such offense in the information? Clearly not. The district attorney is to act on the depositions, and to prefer the information charging the offense which the facts disclosed in such depositions show, or tend to show, has been committed by the defendant. For this purpose, among others, the depositions are required to be returned to the court at which the defendant is to appear. The provision in the constitution requiring an examination and commitment is to secure persons accused of crime from being proceeded against until there has been a preliminary trial before some judicial officer to determine whether there is a reasonable or probable cause for putting the defendant on his trial. When this is done, and the defendant is held to answer, the constitutional requirement has been complied with. The responsibility is then thrown on the district attorney to determine, from the testimony above referred to, the offense to be charged in the information. We see no reasonable objection to this view. We think it correct, and by it no right of the accused party is impaired, and there is no obstacle to a fair trial of the defendant for the offense charged. We are of opinion that the court below did not err in refusing to set aside the information herein. People v. Lee Ah Chuck, 6 PAC. REP. 859. The instruction to which our attention is directed is not obnoxious to the objection that it could under no circumstances be correct.

We find no error in the record, and the judgment and order are affirmed.

We concur: MYRICK, J.; SHARPSTEIN, J.