People v. Staples

Beatty, C. J. — The defendant was convicted in the superior court of Los Angeles County of the crime of grand larceny, and appeals from the judgment and from an order denying a new trial.

His first assignment of error is upon the order of the superior court overruling his motion to set aside the information. One ground of the motion was, that- the magistrate before whom his examination was had issued his warrant of arrest without having taken any depositions of witnesses in support of the charge laid in the complaint, thus violating—as he claims—the provisions of sections 811, 812, and 813 of the Penal Code. In support of this point he cites and relies on the case of Ex parte Dimmig, 74 Cal. 164. But that case lends no support to his contention, for two reasons. In the first place, the complaint in this case, unlike the complaint against Dimmig, is positive and direct in its allegation of every fact necessary to support the charge laid, and is therefore in itself a sufficient deposition within the doctrine of the Dimmig case. In the second place, the want of jurisdiction to order an arrest becomes immaterial when the warrant of arrest is functus officio. In Dimmig’s case the objection was raised while the warrant was the [26]only authority for holding him, and the warrant being held invalid, he was necessarily discharged. But when a prisoner has been examined, and evidence adduced sufficient to justify the magistrate in holding him to answer on a charge of felony, the infirmity in the warrant of arrest, if any there be, ceases to be of any consequence, since he is thereafter held under the commitment, which of itself authorizes the filing of an information. The regularity of the information does not depend on the complaint, but upon the order holding the defendant to answer. (People v. Velarde, 59 Cal. 458; People v. Wheeler, 65 Cal. 77.) This view also disposes of the second ground of the motion, viz., that the complaint alleged the larceny to have been committed in San Bernardino County, and the stolen goods to have been brought into Los Angeles County, whereas the information charges a larceny in Arizona Territory, and a subsequent bringing of the stolen goods into Los Angeles County.

Even if the offense charged in the information was, as claimed, totally different from that laid in the complaint, it would not affect the sufficiency of the information, since, as we have seen, the information does not depend on the complaint, but upon the commitment, and it does not appear that the order of commitment differed in any respect from the information. It is not claimed, and it cannot be, that the commitment must follow the complaint, for the statute and the decisions of this court are directly to the contrary. It is the duty of the magistrate to hold the defendant to answer for the offense proved, whatever may have been the offense charged. (Pen. Code, sec. 872; People v. Wheeler, 73 Cal. 255.) Therefore, if the evidence showed that the goods were stolen in Arizona Territory, it was the duty of the magistrate to hold him for that offense, if it was in fact or law a different offense from that charged, and if he failed to do so, it was nevertheless the duty of the district attorney, in drawing the information, to charge the offense according to the facts disclosed by the depositions, ignoring to that extent the form of the commitment. (People v. Vierra, 67 Cal. 231;