94 Cal. 497 | Cal. | 1892
The defendant was charged by information with the crime of grand larceny, and appeals from a j'udgment of conviction, and an order denying his motion for a new trial.
2. The defendant further claims that he was not legally committed for the offense charged in the information, because it is not the same as charged in the complaint upon which he was examined and held to answer; and we think his motion to set aside the information should have been granted for this reason. It is shown bjr the record that in the complaint filed before the magistrate, the defendant was charged with the larceny of “ three certain steers, the personal property then and there of one Joseph Wright and E. G. Jones,” while in the information he is charged with stealing “the personal property of one Joseph Wright, to wit, turn certain steers.” It is manifest that there is such a variance between the offense described in the complaint and that charged in the information that the one cannot be deemed the same as the other. The only attempt made in either the complaint or information to describe the stolen property, and thus to identify the offense, was by an averment as to the ownership of the property, and this averment not being the same in both, the information describes a different offense from that contained in the complaint; and proof which would sustain one would not support the other. (2 Bishop’s Crim. Proc., sec. 723.) There can be no doubt that in an indictment or information for larceny, where the stolen property is
There were no depositions returned to the superior court, and the district attorney, in the information filed, should have confined himself to charging the offense named in the complaint, and for which the defendant was held to answer. That officer was certainly not authorized to go outside of the complaint and the order holding the defendant to answer, and upon what he may have learned from other sources charge a different larceny in the information. (People v. Parker, 91 Cal. 91.)
It is claimed by the attorney-general that this objection to the information was not made upon the hearing of the motion to set it aside, but only after verdict upon a motion to arrest the judgment. We do not so understand the record. It is true, that in the bill of exceptions settled by the court upon its ruling on the motion to set aside the information, the complaint upon which defendant was examined and held to answer is not set out in substance or in terms, but it does appear therefrom that such complaint was introduced in evidence upon the hearing of the motion, and as it is set out in another part of the record before us, we can look at it for the purpose of ascertaining its contents. A hill of exceptions is to be read in connection with the record of which it forms a part, and a document set out in another part of the record, which is sufficiently identified as the one referred to in such bill of exceptions, may be deemed a part of it, and considered in passing upon the merits of an exception reserved by such bill. As the record shows that the complaint upon which defendant was examined and held to answer was introduced upon the hearing of the motion to set aside the information, and the point here discussed was involved in the motion made, we are bound to presume that the court considered the same in passing upon that motion, and in effect decided that the variance between the complaint and in
Judgment and order reversed.
Garoutte, J., Sharpstein, J., Paterson, J., and Harrison, J., concurred.
Rehearing denied.