People v. Vierra

Thornton, J. The defendant was accused by information of murder, and was convicted of manslaughter. On his arraignment his counsel moved the court to set aside the information, on the ground that the commitment holding defendant to answer in the complaint filed in the committing magistrate’s court ordered that the defendant be held to answer for the crime of manslaughter, and the information filed against him accuses him of murder. The defendant further moved that the district attorney be directed to file an information, against defendant for manslaughter.

In support of this motion, counsel for defendant read the complaint filed with the magistrate which charged the defendant with murder, and also read the commitment and order of the magistrate indorsed on the complaint, which is in these words: “ It appearing to me that the offense of manslaughter has been committed, and that there is sufficient cause to believe that José F. Vierra, the defendant, guilty thereof, that the said defendant did wilfully, unlawfully, and feloniously cut and stab about the abdomen one Manuel Maria, with a certain dirk knife about the abdomen, a human being, from the effects of said, the said named, the said Manuel Maria soon after died. I order that the said José F. Vierra be held to answer to the samp and [232]committed to the sheriff of the county of Fresno, and that he be admitted to bail in the sum of $3,000, and is committed to the sheriff of the county of Fresno until he give such bail.”

The court denied the motion and defendant excepted.

The proceeding by information for a capital offense is one which has come into use under the present Constitution adopted in 1879. (Const, art. i. § 8.) Under the former Constitution an indictment was required. (Const, of 1849, art. i. § 8.) The section of the present Constitution authorizing the proceeding by information is as follows: “Section 8. Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county.”

The defendant on his arrest must be taken before a magistrate (Pen. Code, §§ 821, 822), who must proceed to examine the case. (Pen. Code, §§ 858, 859, 860.) The testimony of each witness, in cases of homicide, must be reduced to writing, as a deposition) by the magistrate or under his direction. (Pen. Code, § 869.) The testimony must be authenticated in the mode set forth in the section last cited, and the depositions must be returned to the clerk of the court at which the defendant is required to appear, together with the warrant, undertakings of bail, etc. (Pen. Code, §§ 869, 883.)