Ex parte Nicholas

Beatty, C. J.

The petition filed on behalf of the said Nicholas alleges, in substance, that his detention is illegal, because he has been charged by information with the crime of embezzlement without any previous examination and commitment by a magistrate for such crime, and because the superior court has denied his motion to dismiss the information, which motion, he says, was based upon the ground that said information had not been found and filed according to law.

In my opinion, the petition is upon its face wholly insufficient to justify the issuance of the writ. Construed with the utmost liberality in favor of the petitioner, all that it shows is, that an information has been filed in the superior court charging him with an offense within the jurisdiction of that court; that he has moved the court, on one of the grounds enumerated in the statute (Pen. Code, sec. 995), to set aside the information, and that the court has erroneously denied his motion.

But the error of the superior court in denying his motion does not make his imprisonment illegal in a sense which will entitle him to be discharged, or to raise the question on habeas' corpus.

The superior court had jurisdiction to hear and determine whatever questions of law or fact were involved in his motion, and its decision, although it may be erroneous, is not void. On the contrary, it is valid and binding until reversed on appeal.

I But I need not dwell upon this aspect of the case. A writ was issued, a hearing has been had, and the case may now be determined upon the sheriff’s return, the petitioner’s traverse of the return, and the facts disclosed at the hearing. From these it appears that on the 6th of April, 1891, the petitioner had an examination in the police court of the city and county of San Francisco, on a charge of larceny of property exceeding two hundred dollars in value; that as a result of such examination he was regularly committed upon the charge made; viz., grand larceny. Thereupon, and within due time, an information was filed in the superior court, charging him with the crime of grand larceny. Upon this information he was brought to trial, but the jury failed to agree upon a verdict, and were discharged. After the jury had been so discharged, the district attorney, by direction of the court, dismissed the information for larceny, and, without bringing the petitioner again before a committing magistrate for examination, filed a new information, charging him with the crime of embezzlement.

Upon this state of affairs, the petitioner contends that nis constitutional rights have been violated by the filing of an information without any previous examination and commitment upon the charge set forth in the information.

But this does not appear to us to be so. He has been examined upon a charge which the committing magistrate has denominated larceny, but it may well be that the depositions prove embezzlement. It not unfrequently happens that the facts of a particular case leave it extremely doubtful under which definition the offense falls, — that of larceny or embezzlement; and if the committing magistrate should give it a wrong designation in his order of commitment, that would not prevent the district attorney from charging it correctly in the information. On the contrary, it would be his duty so to do. (People v. Lee Ah Chuck, 66 Cal. 662; People v. Vierra, 67 Cal. 231; Ex parte Keil, 85 Cal. 312.) And if the district attorney should fail to discover and correct the mistake of the committing magistrate before filing an information, we know of no reason why, under leave of the court, he could not correct it subsequently by withdrawing the first information and filing an amended one. If he did not, the only result would be that the defendant would have to be acquitted on the ground of a variance between the charge as alleged and the proofs offered to sustain it, in which case the statute expressly imposes upon the court the duty of ordering the, detention of the defendant, to the end that a new information or indictment may be preferred. (Pen. Code, sec. 1165.)

But surely it could never be held that the court and the district attorney, although they can clearly see from an inspection of the depositions that a trial of the defendant on the information as framed can only result in his acquittal on the ground of variance, must nevertheless go through the form of a trial and acquittal in order to bring the case within the literal terms of section 1165, before making the amendment that is inevitable in the end in order to prevent a ridiculous miscarriage of justice. Courts, even in criminal proceedings, are not rendered quite so impotent as this. Lex non cogit ad vana, is a maxim universally applicable.

And again, if the variance between the charge and the proofs is not disclosed until the trial, and if the case is so doubtful that the court does not become satisfied, until after a failure of the jury to agree, that the information should be corrected in order to avoid a variance (which is the case here), can it be pretended that the power of the court to order the filing of another information is less ample after a mistrial, by a failure of the jury to agree, than it is after they have agreed to acquit? Surely not. It must be true that if, upon an acquittal of the defendant upon the ground of variance, the court may order the filing of another information, it may make such order at any earlier stage of the proceeding when the necessity for it becomes apparent.

The superior court, therefore, did not exceed its power in directing the filing of a new information against this petitioner after the mistrial. Nor does it follow that it was necessary to bring the petitioner again before the committing magistrate for the purpose of a new examination and commitment before filing a new information. If the evidence taken on the first examination was in the possession of the district attorney, — as it must have been, — and was such as to justify an information for embezzlement, it would have been a vain and useless thing to go through the form of taking the same testimony over again, and neither the statute nor the constitution requires that this should be done. The petitioner had been examined once in a manner to conserve all his legal and constitutional rights, and there are neither substantial nor formal grounds for saying that he had not been examined and committed before information filed.

It is true, it does not appear in this proceeding that the depositions taken at the original examination justify the present information, but it is sufficient to sustain our conclusion that they may justify it. The superior court has decided that they do, in passing upon petitioner’s motion to dismiss the information, and in the absence of a showing to the contrary, it must be presumed that the ruling was correct.

It does not appear, therefore, that the superior court, has even erred in the ruling complained of, much less that it has in any manner exceeded its jurisdiction.

Writ discharged and prisoner remanded.

De Haven, J., Harrison, J., and Sharpstein, J., concurred.