91 Cal. 23 | Cal. | 1891
— 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
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;
The superior court did not err in refusing to set aside the information.
Nor did the superior court err in overruling the demurrer to the information. If -we understand the position of appellant’s counsel with reference to the demurrer, it is, that the information does not charge an offense within the jurisdiction of the superior court of Los Angeles County, although no such objection is stated in the demurrer.
The information charges in plain, direct, and unequivocal terms that the defendant did, in the territory of Arizona, unlawfully, willfully, and feloniously, take, steal, and carry away from the possession of one Margaret McGregor, a watch and chain of the value of seventy-five dollars, then and there being the personal property of said Margaret McGregor, and that after having so unlawfully taken and stolen said watch and chain, he did bring the same into the county of Los Angeles.
This states the exact offense defined in section 497 of the Penal Code, the jurisdiction of which is, by section
Several instructions asked by the defendant were refused by the court. The only question worthy of consideration raised by the assignments of error upon these rulings is this: Was it essential to prove that the original larceny was committed in Arizona, as alleged in the information?
The defendant was porter on a sleeping-car upon which the owner of the stolen property — Mrs. McGregor — was traveling as a passenger from Chicago to this state. The watch and chain were stolen from her berth just about the time the train crossed the Colorado River from Arizona to San Bernardino County, in this state. The evidence left it somewhat doubtful upon which side of the boundary the theft occurred, and the defendant asked the court to instruct the jury that they must acquit unless they were satisfied that the larceny was committed in Arizona. These requests to charge were refused, and the question is, whether such refusal was error. We do not think it was. Whether the original larceny was committed in Arizona, or across the line, in San Bernardino, the taking of the stolen property into Los Angeles County was equally criminal; and not only was it equally criminal, it was the same offense, punishable in the same manner, to the same extent, in the same jurisdiction, under the same law. The precise spot at which the criminal act was initiated was a mere circumstance of the offense, properly enough stated in the information, but not essential to be proven as stated. If the information had charged a larceny in Los Angeles County, proof of an original taking in San Bernardino or in Arizona would have been admissible. The only real question is, whether evidence of a larceny on the west bank of a river is such a substantial variance from the charge that it was committed on the east bank as to be inadmissible. Under the circumstances of this case, where the theft occurred on a moving train in the act of crossing the river, we do not think the variance was material.
It is contended that the evidence does not sustain the verdict, because,— 1. There was no evidence as to the laws of Arizona defining larceny; and 2. Because the evidence clearly showed that the stolen goods were worth less than fifty dollars. As to the first objection, we say that the laws of Arizona have no bearing upon the question whether our laws have been violated. We do not assume to punish offenses against the laws of other states and territories; when we undertake to punish as larceny the bringing into this state goods that have been stolen in another state or country, we mean goods that have been stolen according to our definition of larceny, for which we look to our own laws exclusively, and not the laws of other countries. As to the second objection, it is sufficient to say that there was some evidénce that the -watch and chain were worth more than fifty dollars, and therefore the verdict of the jury on that point is conclusive.
There is no error in the record, and the judgment and order appealed from must be affirmed, unless a motion now made by the defendant to reverse the judgment and discharge him from custody must be granted on the ground that his appeal has not been decided within sixty days after the filing of the transcript here, as required by section 1252 of the Penal Code. But no such consequence is annexed to a failure to comply with that provision, in which respect it differs from section 1882, which is mandatory in its requirement that a criminal prosecution must be dismissed, unless good cause to the contrary is shown, when the defendant is not brought to trial in the superior court within sixty days after the filing of an indictment or information. It is to be noted, also, that the latter section prescribes the means, and the only means, of enforcing the constitutional right of the accused to a speedy and public trial. (Const., art.
Motion to reverse denied, and judgment and order affirmed.
Sharpstein, J., Paterson, J., De Haven, J., Harrison, J., Garoutte, J., and McFarland, J., concurred.
