People v. Bianchino

BURNETT, J.

Defendant was convicted of the crime of rape, alleged to have been committed on the person of Annie Lertora, a child of the age of five years, and was sentenced to a term in the state prison at Folsom. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

1. It is contended that the court erred in denying the motion of defendant to set aside the information. The motion was as follows: “Now comes the defendant in the above entitled action, and moves the court to set aside the information on file herein on the ground that before the filing thereof, he, the said defendant, had not been legally committed by a magistrate.” The evidence, however, introduced in support of the motion, proves to the contrary that the defendant

ivas legally committed by the magistrate.

The order indorsed on the complaint or deposition and signed by the committing magistrate is as follows: “It appearing to me that the offense, to wit, Felony, Rape, in the within complaint mentioned has been committed and there is sufficient cause to believe the within Amadeo Bianchino guilty thereof, I order that he be held to answer the same,” etc.

The foregoing order seems to be in strict accord with the requirement of section 872 of the Penal Code, which provides that “The magistrate must make or endorse on the complaint an order signed by him to the following effects

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It appearing to me that the offense in the within complaint 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.”

It will be observed that the magistrate designated the offense as “felony, rape,” thereby describing it generally as he is permitted to do, under the statute. He made it more definite, however, by stating that it was the “rape mentioned in the within complaint.” It was such an order as the statute contemplates, and it afforded authority for the district attorney to file an information in the superior court. But it is contended that the district attorney filed an information charging a different offense from that for which defendant was held to answer, and therefore the motion should have been granted. The motion, as we have seen, did not raise the point, as it was based upon the ground that the defendant had not been legally committed at all, and not that he had not been committed for the offense charged in the information. A defendant should be required, in a technical matter of this character, to stand or fall upon the ground that he has deliberately chosen, and the law should impose upon him also the duty of pointing out in his motion the particular defect upon which he relies in order that the district attorney, if he deems it advisable, may amend the information and thereby avoid the danger and expense of a mistrial. If he fails to do so in a case like the one at bar, where the only point involved in the motion is an apparent variance between the date of the offense as it appears in the order and as shown by the information, he should be precluded from raising the question in any subsequent proceeding. However, assuming that the issue is properly before us, it must be held that the information does not charge a different offense from that recited in the order of commitment. There can be no pretense that the investigation before the committing magistrate and in the superior court concerned more than one offense. The evidence disclosed only .one act of criminal intercourse, and the only variance-between the commitment and the information relates to the particular date of the commission of the crime. This variance, however, is unimportant when it is apparent that only one offense was committed.