People v. Murray

WORKS, P. J.

Defendant was convicted of the crime of obtaining property by false pretenses. He appeals from the judgment of conviction and from an order of the trial court denying his motion for a new trial.

Pursuant to the preliminary examination, which resulted in the filing of information against appellant, the committing magistrate held him to answer on a charge of procuring money under false pretenses. The information which was filed thereafter charged him with that offense and with two others, the pleading consisting of three counts. At the trial, under a claim that they had first been informed of the contents of the information immediately before the hearing commenced, the counsel for appellant asked leave to withdraw a plea of not guilty, which had theretofore been entered, for the purpose of moving to set aside the information. The request was refused and it is contended that the court abused its discretion in not granting it. The courts of review of the state have decided in many cases, among which is

People

v.

Nogiri,

142 Cal. 596 [76 Pac. 490], that a district attorney has no power to file an information charging an offense different from that for which a defendant is held to answer by a committing magistrate. Without deciding whether the present case is within the rule thus declared, or whether the request of appellant for leave to withdraw his plea came too late, we think the refusal of the trial court to grant the request was proper. As stated by counsel to the court, appellant desired an opportunity to “move to set aside this information entirely on the ground” stated in the decisions to which we have referred. It was said at another time that a withdrawal of the plea was desired “for the purpose of making a motion to set aside the information” on that ground. It will be observed that appellant indicated no desire to move to set aside the counts of the information other than the false pretenses count, which latter was in accord with the order of the magistrate. In a case in which, under circumstances similar to those here presented, a motion was actually made to set

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aside an entire information the court said: “To be effective the motion should, in our judgment, have been directed to the second count alone, and not to the entire information”