104 P. 282 | Utah | 1909
This is a proceeding praying for a -writ of mandate. In the petition it is alleged that B,. E. Bramlet, B. E. McGuire, and John K. Garrett, having been held by a committing magistrate to answer in the district court of Weber county for the crime of robbery, were informed against for such offense by the district attorney of that district. Through inadvertence the district attorney neglected to charge venue in the information. After the defendants had been arraigned, and had entered their pleas of not guilty, the district
Of course mandamus will not lie to correct the records of the district court as prayed for. Where a
We cannot agree with the district attorney that a dismissal of an action and a discharge of the defendant is synonymous with, and amounts to no more than, a dismissal of an information. True, such a dismissal and discharge
There is still another reason why we think the district-attorney was not entitled to file the second information under all the circumstances. Section 4694 of the statute provides:
“An information may be amended in matter of substance or form at any time before tbe defendant pleads, -without leave of court. Tbe information may be amended at any time thereafter and on tbe trial as to all matters of form, at tbe discretion of tbe court, where tbe same can be done without prejudice to tbe rights of tbe defendant. No amendment must cause any delay of tbe trial unless for good cause shown by affidavit.”
The first information, failing to allege venue, undoubtedly was defective in matters of substance. The defendants had been arraigned thereon and their plea taken before leave was asked to amend the information. The.
We have been referred to still another section of the statute (4793) which provides:
“If the defendant shall have been formerly acquitted on the ground of variance between the information or indictment and the proof, or the information or indictment shall have been9 dismissed upon an objection to its form or substance, or in order to hold the defendant for a higher offense, without a judgment of acquittal, it shall not be an acquittal of the same offense.”
In a ease where the first information in a prosecution for robbery was invalid for the reason that it contained no allegation of the ownership of the property taken, and the information on the motion of the district attorney was dismissed, and the defendant discharged, and a new information filed by the district attorney, without leave or direction of the court, and upon which new information the defendant was. prosecuted and convicted, the Supreme Court' of California held that, under a section of their statute corresponding with section 4793 of our statute, the pleas of jeopardy and former acquittal, based upon the dismissal of the first information and the discharge of the defendant, were not well founded, and that the district attorney was authorized to file a new information without the direction or order of the court. (People v. Ammerman, 118 Cal. 23, 50 Pac. 15.) And in the case where the defendant upon an information filed was prosecuted for larceny, and the jury disagreed and were discharged, that court again held that the trial court did not err in directing the district attorney to file a new information charging the defendant with embezzlement, and
We think tbe demurrer to tbe petition ought to be, and it therefore is, sustained, and tbe writ denied. It is so ordered.