People v. Kirwin

WORKS, P. J.

Defendant was informed against for the crime of embezzlement and was convicted. He appeals from-the judgment and from an order of the trial court denying his motion for a new trial.

The subject of the offense, as alleged in the information, was “one hundred shares” of the capital stock of a certain corporation, which it was charged that appellant held as bailee. During the preliminary examination of appellant, and while the complaining witness was on the stand in the committing magistrate’s court, appellant offered to her and she took from him a certificate for an equal number of the shares of the stock of the same corporation. Appellant contends that this restitution was a complete defense to the charge upon which he was later committed, under the provisions of section 512 of the Penal Code, which reads: “The fact that the accused intended to restore the property embezzled is no ground of defense or mitigation of punishment; if it has not been restored' before an information has been laid before a magistrate, or an indictment found by a grand jury, charging the commission of the offense.” It will be observed, however, that this section does not provide that restitution is a defense, but that it is not a

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defense except under certain circumstances. The enactment must be read in connection with section 513 of the same code, which is to the effect that when all proper circumstances are present the fact of restitution “is not a ground of defense, but it authorizes the court to mitigate punishment, in its discretion.”

The question now to be determined is whether the law as declared in these sections has any application to the case of appellant. He contends that the word “information,” as employed in section 512, refers to the pleading of that name which is filed by district attorneys, and he therefore insists that the restitution made by him was not too late, for the reason that an information is not filed by a district attorney in a particular case until after the preliminary examination of the accused. We think the word, as used in the section, cannot be .given the meaning which appellant would ascribe to it. This seems apparent from the language of the enactment itself, for the information must have “been laid” before the magistrate himself, while the information prepared by a district attorney is filed with the superior court after a magistrate has concluded his labors and a commitment has resulted (Pen. Code, see. 809). We think the word used in section 512 was intended to import the laying before a magistrate of a charge, or of “information,” that a public offense has been committed and that it has been committed by the person whose preliminary examination is sought. A somewhat similar use of the word “information” occurs in section 811 of the Penal Code. As the word in section 512 must be so read, it follows that the restitution came too late, for it was made while appellant’s preliminary examination was in progress. We do not decide whether sections 512 and 513 would have been available to appellant on appeal merely because the trial court resolved against him the discretion referred to in the latter section, if the discretion was so resolved, and even if the restitution had been made before the committing magistrate had been “informed” of the charge against appellant.