People v. Christian

Garoittte, J.— The defendant, Christian, was convicted of the crime of assault with a deadly weapon upon the person of one George Massino, and now appeals from the judgment and order denying his motion for a new trial.

Upon being called to plead to the information, he moved to set it aside upon the ground that he had never been legally committed by a magistrate. And we think the proper disposition of that motion demands a reversal of the judgment. The inception of the present prosecution is founded in a complaint laid before a magistrate upon the oath of one Mck Savage. In that complaint John Doe, alias, is charged with an assault with a deadty weapon upon the person of one George Magin. At the conclusion of the preliminary examination the magistrate entered his order of commitment upon the back of the complaint, reciting that, “ It appearing to me that the offense of an assault with a deadly weapon, to wit, a pistol, has been committed, and that there is sufficient cause to believe that the within named Harry Christian, arrested under the name of John Doe, guilty thereof, I order that he beheld to answer to the same,” etc.

[473]The district attorney thereupon filed an information against the defendant, Christian, charging him with the crime of assault with a deadly weapon upon the person of one George Massino, and upon that information he has been tried and convicted. The defendant was not charged by the complaint before the magistrate with assaulting one George’ Massino; neither does the commitment indicate that he was held to answer before the superior court upon that character of charge. There is a wide difference between the offense of an assault with a deadly weapon upon John Doe and that of assault with a deadly weapon upon Bichard Boe. The name of the party assaulted is a material element of the offense, and common justice to the defendant demands that he be notified of the particular offense for which he stands committed. In the present case he had no such notice. If the record gave him any information upon the subject, it would be an inference at least that he was to be tried for the assaulting of one Magin, the party named in the complaint, but it was only when he was called upon to plead that he for the first time became aware of the nature of the offense for which he was to be put to trial. Again, this party was arrested and brought before' a magistrate to defend himself against a charge of assaulting one Magin. Under those circumstances, and under a complaint charging that offense, he could not be called upon to defend himself for assaulting one Massino, for there was no complaint on file upon which to base an examination of that character.