In Re Danford

THE COURT.

An affidavit of complaint was filed before a justice of the peace charging defendant with a violation of section 474 of the Penal Code. This affidavit of complaint is sufficient in every respect. The justice of the peace, upon preliminary examination, held the defendant to answer. Thereafter, the district attorney filed an information charging defendant with the same offense specified in the affidavit of complaint, and, in addition thereto, included in said information a second and different offense than that for which defendant had been held to answer. Defendant moved to set aside the information because two separate and distinct offenses were charged, and also filed a demurrer to the information on the grounds, first, of the uncertainty thereof, and, second, that the information included an offense for the commission of which defendant had not been legally committed by a magistrate.

It is alleged in the petition for the writ that the court granted leave to the district attorney to strike out of the information the second offense, which was the one not embodied in the affidavit of complaint, and overruled the demurrer to the information. It is contended by petitioner that this action of the district attorney in striking out the second offense deprived the court of jurisdiction to hear and determine the action. Assuming that this second offense was included in the information without warrant, upon such theory the same was surplusage and was properly stricken from the information. The effect of striking the same from the information was an election to proceed only as to the offense properly charged. When a sufficient information charging the offense for which he stood committed remained, the accused could in no sense be injured by the action of

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the district attorney or the court in striking out such surplusage. It is alleged that subsequently the defendant was tried and convicted of the first offense. It will be assumed, nothing to the contrary appearing in the petition or exhibits attached thereto, that his plea was entered after the hearing of the motion and the demurrer. The affidavit of complaint being sufficient, no reason is apparent why the rule laid down in

Ex parte Ruef,

150 Cal. 665, [89 Pac. 605], should not be ■applied, which is that, “where an indictment purports or attempts to state an offense of a kind of which the court assuming to proceed has jurisdiction, the question whether the facts charged are sufficient to constitute an offense of that kind will not be examined into on