From Casetext: Smarter Legal Research

People v. Parker

Supreme Court of California
Sep 7, 1891
91 Cal. 91 (Cal. 1891)


         Appeal from a judgment of the Superior Court of Tulare County.


         The defendant could only be charged with an offense disclosed by the depositions. (Pen. Code, secs. 809, 995; People v. Thompson , 84 Cal. 598; Ex parte Sternes , 82 Cal. 245.) There was a material variance between the allegations of the information and the proofs, for which the judgment should be reversed. (Bishop's Criminal Procedure, secs. 94, 137; Wharton's Criminal Pleading and Practice, sec. 116; Wharton's Criminal Evidence, sec. 94; People v. McNealy , 17 Cal. 332; People v. Bitancourt , 74 Cal. 188; People v. Henry , 77 Cal. 445; People v. Rogers , 81 Cal. 209.)

          J. S. Clack, and Charles G. Lamberson, for Appellant.

          Attorney-General Hart, and Deputy Attorney-General Layson, for Respondent.

         Defendant was examined and committed by a magistrate, as provided by article I., section 8, constitution. (People v. Wheeler , 65 Cal. 77; People v. Vierra , 67 Cal. 234.) Defendant was "legally committed," according to the provisions of part 2, title 3, chapter 7, Penal Code. (Ex parte Baker , 88 Cal. 84.) The district attorney is not confined to filing an information for the offense designated by the magistrate. (People v. Lee Ah Chuck , 66 Cal. 662; People v. Giancoli , 74 Cal. 646.) The ownership of the barn was not a necessary allegation. (State v. Wright , 24 P. Rep. 229 (Or.); Anderson v. State , 48 Ala. 667; 17 Am. Rep. 36; Butler v. State , 22 Ala. 43.) The crime was alleged to have been committed in the jurisdiction of the court, and the defendant cannot complain of want of more specific statement. (People v. Wooley , 44 Cal. 494; Pen. Code, sec. 959, subd. 4; United States v. Howard, 3 Sum. 17, 18; 2 Russell on Crimes, 716, 717.)

         JUDGES: In Bank. Garoutte, J. De Haven, J., Sharpstein, J., McFarland, J., Harrison, J., and Beatty, C. J., concurred. Paterson, J., concurring.


          GAROUTTE, Judge

         An information was filed charging the defendant with the crime of [27 P. 538] burglary.

         Before pleading, he moved to set aside the information upon the ground "that he had not been legally committed by a magistrate." Upon the hearing of the motion it was shown that G. W. Ditman filed a sworn complaint before a magistrate, alleging "that one Flem Parker, on or about the 20th of November, 1890, and before the filing of this complaint, at the county of Tulare, state of California, did willfully and unlawfully enter a barn with intent to commit larceny, said barn being located on the Simmons ranch, in said Kaweah township," etc. There was no other depositions in the case, and upon the complaint was indorsed the following commitment: "It appearing to me that the offense in the within deposition mentioned has been committed, and that there is sufficient cause to believe the within-named Flem Parker guilty thereof," etc. The information charges that "the said Flem Parker, on or about the twentieth day of November, 1890, and before the filing of this information, at the county and state aforesaid, did willfully, unlawfully, and feloniously enter a certain barn, the property of one G. W. Ditman, with intent then and there and therein to commit the crime of larceny." The motion to set aside the information should have been granted, for the foregoing record discloses that the defendant was never committed by a magistrate for the offense charged in the information. Under the law as declared in People v. Lee Ah Chuck , 66 Cal. 663, and People v. Vierra , 67 Cal. 231, the district attorney is allowed to file an information based either upon the offense set out in the commitment or upon the facts disclosed by the depositions, and that is the limit of his authority. This information is based neither upon the commitment nor the facts set out in the complaint or deposition. It alleges that the defendant entered a certain barn, the property of one G. W. Ditman, with the intent, etc. The record is entirely silent as to any such state of facts, and the district attorney, in framing his information, is bound by the record.

         It is insisted that the allegation of ownership of the barn in G. W. Ditman is immaterial, and therefore harmless. While in charging the offense of burglary it may not be necessary in all cases to allege ownership of the property entered, yet in this case it was a necessary allegation, for it constituted the entire and only description of the barn which the defendant is charged with feloniously entering.

         Let the judgment be reversed, and the cause remanded, with directions that the information be set aside.



         Paterson, J., concurring. If the question were an open one, I should say that an information could not be sustained unless it charged the offense charged in the complaint, and for which he was examined and committed by the magistrate. Such, appears to me, is the view of the supreme court of the United States in Hurtado v. California , 110 U.S. 516. Our own cases, however, hold that the district attorney may prosecute for any offense shown by the depositions taken on the preliminary examination. I therefore concur.

Summaries of

People v. Parker

Supreme Court of California
Sep 7, 1891
91 Cal. 91 (Cal. 1891)
Case details for

People v. Parker

Case Details

Full title:THE PEOPLE, Respondent, v. FLEM PARKER, Appellant

Court:Supreme Court of California

Date published: Sep 7, 1891


91 Cal. 91 (Cal. 1891)
27 P. 537

Citing Cases

People v. Warner

The description was clearly sufficient for all purposes. (See People v. Edwards, 59 Cal. 359; People v.…

People v. Smith

Appellant assigns error to the refusal of the trial court to set aside the information on the ground that it…