People v. Ayhens

Belcher, C. C. The defendant was charged with the crime of obtaining property by false pretenses. The information against him was filed in the superior court on the seventeenth day of October, 1889, and it alleged that the crime was committed on the twenty-sixth day of June, 1888. The defendant demurred to the information, upon the ground, among others, that the prosecution was barred by the provisions of section 801 of the Penal Code. The court sustained the demurrer and dismissed the case, and the people appeal.

1. The Penal Code made the offense charged, at the time of its alleged commission, a misdemeanor (secs. 17, 533); and it provided that an information for any misdemeanor must be filed within one year after its com[88]mission. (Sec. 801.) It is, however, argued for appellant that the “ information ” referred to in the above section is the complaint made before a committing magistrate for the issuance of a warrant of arrest, and that, as the complaint in this case was filed within a year, the prosecution was not barred.

The constitution provides as follows:—•

“ 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.” (Art. 1, sec. 8.)

And the Penal Code contains the following provisions:—

“The complaint is the allegation in writing made to a court or magistrate that a person has been guilty of some designated offense.” (Sec. 800.)

“ When a defendant has been examined and convicted, as provided in section 872 of this code, it shall be the duty of the district attorney, within thirty days thereafter, to file in the superior court of the county in which the offense is triable an information charging- the defendant with such offense.” (Sec. 809.)

“ All public offenses triable in the superior courts must be prosecuted by indictment or information,” etc. (Sec. 888.)

“The first pleading on the part of the people is the indictment or information.” (Sec. 949.)

From these provisions it very clearly appears, we think, that the information spoken of in section 801 is the paper required to be filed in the superior court, and not the one filed before the magistrate.