People v. Hudson

CONREY, P. J.

The plaintiff appeals from an order dismissing an information which, in three counts, charged the defendant with the commission of the crime of burglary. The several counts refer to the same acts, differing only in the intent with which they were done. The intent described in the first count was to commit the crime of larceny; the second, murder; the third, rape. The complaint before the committing magistrate charged that the defendant entered the apartment of one Irma V. Meyer with intent “to commit the crime of larceny and then and there to bill and murder the said Irma V. Meyer. ” The defendant’s motion to set aside the information was based upon the ground “that before the filing of said information said defendant had not been legally committed by a magistrate for the offenses set forth in the information. ” At the hearing of said motion on May 26, 1917, the superior court entered in its minutes an order “that the said motion to set aside the information be and the same is hereby denied. . . . It is now by the court ordered that the within matter be and the same is hereby continued for further discussion” until ' May 28, 1917.

The foregoing facts appear from thg information and from the clerk’s transcript, supplemented by the reporter’s transcript of the proceedings of the hearing on the motion to dis

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miss. In the brief of counsel for the people statements are' made purporting to show the order of commitment made by the committing magistrate. In the brief of counsel for defendant it is asserted that in the evidence taken at the preliminary examination there was no evidence that defendant entered said apartment with intent to commit the crime of rape. The transcripts give us no direct information concerning the contents of .the commitment order, or concerning the evidence received at the preliminary examination. For the purpose of learning to what extent the proceedings before the magistrate were presented to the superior court, we may perhaps take cognizance of some of the statements made by the judge at the hearing of the motion and in ruling thereon. He said that he had read the information and the complaint on which the hearing was had in the magistrate’s court, and the commitment; that the defendant was charged in the justice’s court with burglary committed with two intents, whereas the information charged him in three counts with three separate intents. At the hearing on May 28th, the judge announced his opinion that the count charging an intent not included in the charge before the committing magistrate should not have been in the information; that he would deny the motion because the motion as made was directed generally to the entire information. Thereupon the defendant moved that the information as to the third count thereof be set aside “upon the ground that before the information was filed the defendant had not been legally committed by a magistrate for the offense named therein, to wit: the offense of burglary and unlawfully entering the building with intent to commit rape. ’ ’ The district attorney objected to the consideration of this motion. This objection was based upon the ground that there is no provision of law for setting aside part of an information. Thereupon, after discussion by counsel, the court granted “the motion to dismiss the information on the ground that the defendant has never been legally committed by a magistrate on the charges embraced in the information.” It is from this order that the people have appealed.