People v. Bettencourt

HART, J.

The defendant was accused by the district attorney of Butte County of the crime of grand larceny, in that, on the first day of May, 1923, he did then and there “wrongfully, willfully and feloniously steal, take and carry away one magneto of the value of $90 . . . , the personal property of Cal Jackson,” etc. The jury convicted him of the charge so made and he appeals from the judgment of conviction and the order denying his motion for a new trial.

The points urged for a reversal of the judgment and the order appealed from are: That error was committed in the order denying the defendant’s motion to set aside the information on the ground that he was not legally committed by a magistrate, “and that no commitment was on file or in the clerk’s office at the time the information was filed against the defendant”; that the evidence was insufficient to justify the verdict; that error was committed in the act of the court in refusing to give certain instructions preferred by the defendant.

The motion to set aside the information was properly denied. The showing made on the motion was that the defendant was given a preliminary hearing on the charge stated in the information before the justice of the peace of Oroville township, Butte County, acting as a committing magistrate, on the seventeenth day of May, 1923; that, upon the conclusion of the taking of the depositions, the magistrate made an order committing the accused for trial in the superior court for the crime with which he was charged in the complaint filed with the magistrate; that, on said day, the magistrate entered the order of commitment upon his docket and indorsed the same on the complaint. It was further shown at the hearing of said motion that the depositions were filed by the phonographic reporter who took them, with the clerk of the superior court. It was made to appear, however, that it was not until after the information against the defendant was filed in the superior court that the commitment was either filed with the clerk of said court or even delivered to the sheriff, to whose custody a person held for trial on a felony or a high misdemeanor charge must, together with the commitment, be delivered (Pen.

[246]

Code, sec. 876), and it is for this reason that the attorney for the defendant made the claim in the court below, in support of his motion to set aside the information, and which he renews on this appeal, that the district attorney prematurely filed the information, or, in other words, filed it before there existed the legal groundwork therefor, and that, therefore, the filing of said accusatory pleading was a futile and nugatory act. Practically the same point has been before the higher courts on several different occasions in the past, and it has in each instance been held, and we doubt not properly so, that it possessed no merit.