Opinion
Page __
__ Cal.App.2d __ 236 P.2d 874 PARKS v. SUPERIOR COURT IN AND FOR ALAMEDA COUNTY et al. No. 14979. California Court of Appeals, First District, First Division Oct. 31, 1951.Hearing Granted Dec. 20, 1951.
Subsequent opinion 241 P.2d 521.
[236 P.2d 875] Robert H. Kroninger, Oakland, Davis & Barber and Robert K. Barber, San Francisco, for petitioner.
J. F. Coakley, Dist. Atty., Alameda County, John J. Schauer, Jr., Deputy Dist. Atty., Oakland, for respondents.
FRED B. WOOD, Justice.
Petitioner seeks a writ of prohibition commanding respondent court to desist from any further proceedings upon an information against him pending in that court.
A complaint was filed against petitioner, which alleged, in separate counts, that he committed three felonies: (1) grand theft, September 15, 1950, the unlawful taking of $2,463 in money, property of Beulah Palmer and Gilbert Blecher; (2) grand theft, November 2, 1950, the unlawful taking of 12,000 board feet of redwood lumber of the value of $843.76, property of Russell Heacox and Ford Converse, and (3) violation of section 476a of the Penal Code, November 2, 1950, the delivery to Frank McKenzie of a check for $843.76 drawn on a bank, with intent to defraud Russell Heacox, Ford Converse and Frank McKenzie, knowing he did not have sufficient funds in or credit with the bank to meet the check in full upon presentation. At the preliminary examination, evidence was introduced on each of the three counts and considered by the magistrate. He dismissed the two grand theft counts and discharged petitioner thereon because it appeared to him that no public offense had been committed, but held petitioner over to answer on the bad check count. In his order of commitment, the magistrate declared, 'It appearing to me that the offense, Felony, to-wit: A violation of Section 476a of the Penal Code has been committed, and that there is sufficient cause to believe the within-named defendant Reuben W. Parks * * * guilty thereof, I order that he be held to answer to the Superior Court * * * to the same * * *'
The district attorney filed an information charging the commission of the three offenses alleged in the complaint, not confining it to the offense mentioned in the order of commitment.
Petitioner moved the superior court for an order setting aside the information, upon the asserted grounds that before the filing of the information petitioner had not been legally committed by a magistrate and had not been committed with reasonable or probable cause. Respondent court denied the motion and set a date for trial on all three counts, and will proceed to trial on those counts unless restrained by this court.
Petitioner claims (1) that, as to each of the three charges, the evidence at the preliminary examination showed neither the commission of a public offense nor reasonable or probable cause to believe that petitioner had committed a public offense, and (2) that the district attorney was without power to charge in the information any offenses not named in the order of commitment, particularly offenses charged in the complaint and dismissed by the magistrate.
(1) The sufficiency of the evidence, as to each of the charges, at the preliminary examination will be first considered.
[236 P.2d 876] Petitioner had developed a process for building homes out of redwood by joining the timbers with dowels and glue. On July 27, 1950, he entered into a written contract with one Robert Coatney, giving the latter an exclusive agency for Alameda County. Coatney paid $1,000 for the contract and was, by its terms, to receive a commission of $8 per 1,000 board feet of timber sold in Alameda County. The contract obligated petitioner, at his own expense, to put up a model home in Alameda County within 60 days. The building of the model home was important to interest prospective users of the process.
Later, petitioner claimed he was unable a raise funds for the construction of the model home; whereupon, Coatney and petitioner unsuccessfully tried to sell exclusive agencies for other counties. They then looked to other sources for funds, and discussed the problem with Coatney's sister, Mrs. Beulah Palmer, who, on September 7, 1950, loaned $1,500 to petitioner and his wife, who gave Mrs. Palmer their note in that sum, secured by a deed of trust on real property in Humboldt County which stood in the name of petitioner's wife. Petitioner represented to Mrs. Palmer that the property thus secured consisted of approximately seven acres, had a seven-room redwood home on it, constructed by the process which they were selling, had a lot of standing redwood timber and a sawmill on it, but that the sawmill had burned; and that the money was to buy the lumber needed for the model home in Alameda County. She also at the same time paid petitioner $1,000 on behalf of her nephew, Gilbert Blecher, to become the exclusive agent of petitioner in Contra Costa County, having promised petitioner she would help Blecher get that money. Petitioner told Mrs. Palmer he wanted that money for the model home, to buy the lumber for the model home. The actual amount of money which she paid over to petitioner was $2,643. Petitioner never built a model home in Alameda County. Subsequently, Mrs. Palmer discovered that the Humboldt County property comprised but 1.08 acres; was a strip of land lying between a highway and a river, about three quarters under water or a part of the highway easement, leaving about one quarter of an acre of usable land; that there was no redwood timber standing on that property; that the house on it was of but five or six rooms instead of seven, not constructed by this particular process, and was unfinished and defective; and that the sawmill was not on the property covered by the deed of trust.
Upon receipt of the $2,643, petitioner, with Coatney, called on two or three mills in the northern part of the state to obtain the type of redwood timber needed for the model home. The lumber was finally purchased from the Mill Creek Mill at Philo. Petitioner bought about 20,000 board feet at approximately $1,400. The lumber was sent from the Mill Creek Mill to McKenzie's mill in San Leandro, at the direction of petitioner, where it was milled to size. Payment to the Mill Creek Mill was to be in two payments: the first in the sum of $600, and the balance upon arrival of the lumber at McKenzie's mill. The $600 payment was made within two or three days after the order was placed. The lumber was sent in two loads, arriving at McKenzie's mill about September 27 and 30, 1950. Russell Heacox, one of the owners of the Mill Creek Mill, testified that the $600 was a down payment on the purchase price, and that he then shipped the lumber in two loads, three days apart; petitioner owed him for the balance; the lumber was sent to the McKenzie Planing Mill. 'Q. For Mr. Parks? A. Yes. Q. It was not sent down there for your benefit? A. No.'
Instead of using the timber for the construction of a model home in Alameda County, petitioner had it shipped to Fresno, for use in a small model at a home show in Fresno. Petitioner called at the mill in San Leandro and told McKenzie to ship the lumber C. O. D. to Fresno and said he would pay the balance due to the Mill Creek Mill when he received payment from the purchasers in Fresno. Petitioner telephoned Heacox at the Mill Creek Mill and told him he was sending the lumber C. O. D. to Fresno and would pay the balance due to the Mill Creek Mill when he received payment from the purchasers in Fresno. Heacox did not object to this arrangement. [236 P.2d 877] The total C. O. D. charges were to be approximately $1,400, which sum consisted of the shipping and other charges totaling about $270, and the balance represented the purchase price to be paid to petitioner by the buyers in Fresno. After the lumber arrived at Fresno, the consignee objected to paying the full amount, telephoned petitioner and got his consent that the consignee pay only the shipping and milling charges, which he did and obtained delivery.
When petitioner called at the McKenzie mill and instructed McKenzie to ship the lumber to Fresno, he signed a blank check and left it with McKenzie, instructing McKenzie to fill in the blanks as to date, payee, and amount, and to use the check to pay the Mill Creek Mill the balance due from petitioner on the purchase price of the lumber. As thus filled in, the check bore date November 3, 1950, and was payable to Mill Creek Mill in the sum of $843.76. The balance maintained by petitioner at the drawee bank was $892 as of the close of business on November 2, 1950, and $666.45 as of the close of business on November 3, 1950. The day the check was presented for payment, the balance was $245.14. The account was completely depleted by December 4, 1950. It appeared that petitioner's wife also drew checks on the same bank account. There was no evidence on the question whether or not petitioner was aware of the amounts of her checks as and when she issued them.
The evidence tending to show that petitioner feloniously took the $2,643 from Beulah Palmer and Gilbert Blecher would be sufficient to hold him to answer had the magistrate so viewed it. 'In a preliminary examination it is not necessary that a defendant be proved guilty beyond a reasonable doubt. 'Reasonable or probable cause,' required to uphold the commitment of a defendant (Pen.Code, § 995), exists if there is sufficient proof to make it reasonable to believe that the defendant is guilty of the offense charged. Pen.Code, § 872; [citing cases].' People v. Mitchell, 27 Cal.2d 678, at page 681, 166 P.2d 10 at page 12. See, also, People v. McRae, 31 Cal.2d 184, 187, 187 P.2d 741; People v. Nagle, 25 Cal.2d 216, 222, 153 P.2d 344; and People v. Thomas, 90 Cal.App.2d 491, 494, 203 P.2d 567. But in the instant case the magistrate, as he well might, took a different view of that evidence and discharged the petitioner. Whether such evidence was available to the district attorney when drafting the information will be considered later in this opinion.
The evidence under the second count, the alleged theft of lumber from Heacox and Converse, is less satisfactory. There was no showing that Heacox and Converse owned any of the lumber when it was shipped to Fresno. They had sold it to petitioner upon receipt of part payment, and shipped all of it to McKenzie's mill for petitioner, not for their own benefit. Respondent suggests it might be argued that this lumber was impressed with a trust for the construction of a model house in Alameda County and that its diversion to Fresno without the consent of Coatney and Mrs. Palmer could constitute embezzlement. That is a tenuous argument. The evidence was addressed to a charge of theft of property belonging to Heacox and Converse, not property belonging to or impressed with a trust in favor of Coatney and Mrs. Palmer. And the information does not allege a taking from Coatney and Palmer. Equally tenuous is respondent's argument that this evidence shows larceny by trick and device; i. e., that petitioner never intended to pay the balance due upon the lumber, further evidenced by his tendering such payment in the form of a check without sufficient funds or credit for its payment. This count of the information alleged no such taking. It alleged a taking on November 2, a full month after title passed. Equally unconvincing is the suggestion that this count of the information is but an alternative form of stating the bad check charge; i. e., theft of property by false pretenses by issuing the check and thereby declaring he had sufficient funds or credit for its payment upon presentation to the bank. There is lacking one of the essential elements of such an offense. The fraud must be the cause which induced the owner to part with his property. See People v. Wasservogle, 77 Cal. 173, 175, 19 P. 270, and People v. Cravens, 79 Cla.App.2d 658, [236 P.2d 878] 662, 180 P.2d 453. If petitioner fraudulently induced Heacox and Converse to part with title when they sold and shipped the lumber, his subsequent issuance of the check could not have been the inducing cause. If the evidence under discussion was sufficient to warrant holding petitioner to answer for some offense not charged in the information, the question remains whether or not it would be available to the district attorney in view of the fact that the magistrate discharged the petitioner in respect to the alleged theft of the lumber.
As to the count which alleges a violation of section 476a of the Penal Code, the evidence adduced at the preliminary examination supports the finding of the magistrate that it appeared that the offense had been committed and that there was sufficient cause to believe petitioner guilty thereof. As we have already observed, the evidence at that stage of the proceeding need only show a reasonable probability of a defendant's guilt.
(2) Inclusion of the two grand theft charges in the information despite the magistrate's dismissal of such charges upon preliminary examination, finds literal support in the last sentence of section 809 of the Penal Code, which declares that the information 'may charge the offense, or offenses, named in the order of commitment, or any offense, or offenses, shown by the evidence taken before the magistrate to have been committed.'
Whether or not this sentence means literally what it says turns principally upon the question whether or not under the state Constitution it is competent for the Legislature to give it such a meaning. The applicable provision of the Constitution appears in the first sentence of section 8 of article I: 'Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law.' This means that ever since the adoption of the Constitution of 1879 it has been and is permissible to prosecute a felony 'by information, after examination and commitment by a magistrate, * * * as may be prescribed by law.' This gives the Legislature a wide discretion in so prescribing, limited only by the requirement that there be an 'examination and commitment by a magistrate'.
At its first session following the adoption of the Constitution of 1879, the Legislature amended various portions of the Penal Code to effectuate this new provision for prosecution by information. Code Amendts., 1880, Pen.Code, pp. 10-30. The Legislature utilized and adapted the existing preliminary examination, and commitment or discharge, procedure which was established in 1850 and until 1880 had been maintained without material change. See Crim.Pract.Act, 1850, §§ 102-124, 147-175; Crim.Pract.Act, 1851, §§ 101-123, 146-176; Pen.Code, §§ 806-829, 858-883. As a part of that adaptation, section 809 was added to the Penal Code, reading in part as follows: 'When a defendant has been examined and committed, as provided in section 872 of this code, it shall be the duty of the district attorney, within thirty days thereafter, to file in the superior court of the county in which the offense is triable an information charging the defendant with such offense.' Code Amendts., 1880, Pen.Code, p. 12. The words 'such offense' were construed, quite naturally, as limiting the district attorney, when preparing the information, to the offense mentioned by the magistrate in his order of commitment issued pursuant to the requirements of section 872. People v. Nogiri, 142 Cal. 596, 598, 76 P. 490.
That was a limitation which did not obtain prior to 1880. Under the old Constitution no person could be held to answer for a 'capital or otherwise infamous crime' (with certain specified exceptions) 'unless on presentment or indictment of a grand jury' Const., 1849, art. I, § 8. But there was this proceeding for the examination, and commitment or discharge, by a magistrate, of a person charged with the commission of a public offense upon the complaint of any person having knowledge of the facts. At the examination, the testimony of each witness was reduced to writing, 'as a deposition,' by the magistrate, [236 P.2d 879] or under his direction. Pen.Code, § 869. If it appeared, after hearing the proofs, that no public offense had been committed or that there was not sufficient cause to believe the defendant guilty of a public offense, it was the duty of the magistrate to so find, and to order the defendant discharged by an 'indorsement on the depositions'. Pen.Code, § 871. If it appeared from the examination that a public offense had been committed, and there was sufficient cause to believe the defendant guilty thereof, it was the duty of the magistrate to 'indorse on the depositions' an order finding such facts and directing that the defendant be held to answer. Pen.Code, § 872. The depositions were returnable 'to the clerk of the court at which the defendant is required to appear'. Pen.Code, § 883. If the grand jury failed to indict such a person 'at the next term of the court at which he is held to answer,' it became the duty of the court to order the prosecution dismissed unless good cause to the contrary were shown. Pen.Code, § 1382. It was the depositions, not the order of the magistrate indorsed upon them, which constituted evidence before the grand jury, when considering the question whether or not to indict. In the investigation of a charge, the grand jury could receive no other evidence than such as was given by witnesses produced and sworn before them, or furnished by legal documentary evidence, or the deposition of a witness in the cases mentioned in the third subdivision of section 686. Pen.Code, § 919. The third subdivision of section 686 mentioned, among others, the case 'where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness'. Nowhere in the Penal Code as it existed in 1879, nor in the Criminal Practice Act which preceded it, have we found any provision which required the grand jury, when basing an indictment, after commitment, upon depositions given at a preliminary examination, to limit its charges to the offense or offenses mentioned by the magistrate in his order of commitment. All the emphasis was upon the 'evidence' adduced. It was the duty of the grand jury 'to weigh all the evidence submitted to them'. § 920. They 'ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury.' § 921. When an indictment was found, the names of the witnesses examined before the grand jury, 'or whose depositions may have been read before them,' were required to be inserted at the foot of the indictment or indorsed thereon. § 943. The only reasonable inference is that in 1879 it was the duty of the grand jury, when framing an indictment after examination and commitment, to consider the evidence adduced at the examination, without limitation as to the offense or offenses mentioned in the order of commitment. That was the examination and commitment procedure with which the framers of the Constitution of 1879 were familiar. Doubtless, they had no intention of limiting the district attorney to the offenses mentioned in the order of commitment, when they authorized prosecution 'by information, after examination and commitment by a magistrate * * * as may be prescribed by law' art. I, § 8. They left it open to the Legislature to impose such a limitation (which it did in 1880), or not, as it might deem desirable.
In this paragraph, each reference to a Penal Code section is to the text of that section as it read in 1879.
Perusal of the Debates and Proceedings of the Constitutional Convention of 1879 (pp. 308-318 and 1176-1177) indicates that a number of the delegates were thoroughly familiar with that procedure.
One committee recommended retention of prosecution by indictment only, in felony cases (Debates and Proc., Const. Conv., 1879, p. 232). Another committee recommended: 'Offenses heretofore required to be prosecuted by indictment shall be prosecuted by indictment or information, as may be prescribed by law * * *' (p. 308). The draft first adopted read as follows: 'Offenses heretofore required to be prosecuted by indictment shall be prosecuted by indictment or by information, after commitment and examination by a Magistrate, as may be prescribed by law * * *' (pp. 1176-1178, and 1425-1426). Later, the Committee on Revision and Adjustment recommended it be amended to read as it now reads (pp. 1491, 1508, and 1509). In that form, as a part of the Constitution as enrolled (pp. 1511-1521), it was adopted (p. 1521).
In 1911, the Legislature measurably modified that limitation by amending section 1008 to permit the amendment of an information [236 P.2d 880] provided that as amended it does not charge an offense 'not shown by the evidence taken at the preliminary examination.' Stats. 1911, ch. 257, p. 436; held valid in People v. Foster, 198 Cal. 112, 243 p. 667.
In 1927, the Legislature removed all vestiges of that limitation by adding to section 809 the provision that the information 'may charge the offense, or offenses, named in the order of commitment, or any offense, or offenses, shown by the evidence taken before the magistrate to have been committed.' Stats. 1927, ch. 617, p. 1045. These words mean, simply, that despite the duty of a magistrate (when holding a defendant to answer for a public offense) to designate the 'offense in the * * * complaint mentioned (or any offense, according to the fact, stating generally the nature thereof) * * *' § 872, the district attorney is not bound by that designation but is free to allege the commission of any crime shown by the evidence which was properly before the magistrate. This is the plain meaning of the words used and is substantiated by the purpose of the amendment as declared in the report of the Commission for the Reform of Criminal Procedure, created by ch. 346 of Stats. 1925, p. 622, to the Legislature at the 1927 Session. The commission prepared and recommended the 1927 amendment to section 809. Concerning that amendment, the commission said: 'It is further recommended that this section expressly permit the information to charge either the crime named in the order of commitment or any offense shown by the evidence taken before the magistrate. This will save time and avoid uncertainty and vexatious delays in cases where for any reason the order of the committing magistrate does not correctly designate the crime shown by the evidence.' Append. to Journals of Senate and Assembly, 1927, vol. 5, p. 7 of Report of Com'n; emphasis added.
An 'incorrect designation' might come about in a number of different ways. A magistrate might draw the wrong legal conclusion from a given set of facts when designating the crime which they evidence, or he might inadvertently overlook or lose sight of the legal significance of one set of facts when holding a defendant over for an offense which he finds sufficiently indicated by another set of facts. In any such case all of such evidence is available to the district attorney in drafting the information. Can the same be true of evidence upon the hearing of which it appears to the magistrate 'either that no public offense has been committed' or that 'there is not sufficient cause to believe the defendant guilty of a public offense,' and pursuant to the duty which section 871 of the Penal Code casts upon him, in such a situation, the magistrate orders the defendant [236 P.2d 881] discharged? That is the question posed in the instant case, for the petitioner alleges and the respondent admits that the court which conducted the preliminary examination 'dismissed the two counts of the complaint charging grand theft and discharged petitioner thereon; that petitioner was discharged on said counts for the reason that it appeared to the said court that no public offense had been committed.'
If the two grand theft counts had been in one complaint and the bad check count in another, and a separate hearing held on each complaint, there would be no such problem. The magistrate's discharge of the defendant on the first complaint, as provided in section 871, and his order of commitment on the second complaint, as provided in section 872, would have produced a clear and distinct record of evidence relevant to the bad check count. The joining of the three counts in a single complaint, followed by a hearing of all three at the same time, produces a seemingly all inclusive record of 'evidence taken before the magistrate' at the hearing of the bad check count. It is only seemingly so in the instant case. The record does not indicate an intent upon the part of counsel or of the magistrate that all of the evidence introduced should be deemed applicable to each and all of the counts, and at the conclusion of the hearing the magistrate commented upon the evidence separately by counts. The problem of unscrambling the record is not the same that it would be if the defendant had stipulated that all of the evidence introduced at the hearing would be deemed applicable to all of the counts. Evidence is not excluded when admissible for one purpose but not for other purposes. In a jury case the opposite party is entitled to an instruction appropriately limiting the scope of such evidence. Adkins v. Brett, 184 Cal. 252, 256-260, 193 P. 251. In the absence of a jury and before a magistrate learned in the law, the opposite party would quite naturally assume that he had no occasion to ask for an express limitation. Even if such evidence were to go in without limitation as to purpose, it would not be available for consideration on any question not involved in the issues. White v. Merrill, 82 Cal. 14, 16, 22 P. 1129. See, also, Miller v. Peters, 37 Cal.2d 89, 230 P.2d 803, citing earlier cases, including Riverside Water Co. v. Gage, 108 Cal. 240, 245, 41 P. 299. Hence, evidence relevant only to one or the other of the grand theft counts, should, upon dismissal of those counts and discharge of the defendant thereon, cease to be available for any purpose. There is the greater reason for such a conclusion, in view of the constitutional sanction for prosecution by information only 'after examination and commitment by a magistrate' (not 'examination and discharge'), when the magistrate has expressly 'committed' as to one count and 'discharged' as to the other two. The mere fact that the three charges were heard at one time and recorded in a single transcript would furnish an artificial, illogical, and unsound basis for saying that all the evidence in that transcript was 'evidence taken before the magistrate' upon the examination of the bad check charge, especially when that would operate to render nugatory the clear mandate of the Constitution and the manifest purpose of the applicable statutes. The only reasonable conclusion, in the instant case, is that no offense shown by the evidence which pertained solely to the grand theft counts is an 'offense * * * shown by the evidence taken before the magistrate to have been committed', within the meaning of that expression as used in section 809, which by its own terms operates only 'When a defendant has been examined and committed'.
Indeed, in the event of such a discharge, there would appear to be no legal authority for ordering a reporter's transscript of the preliminary examination, or of paying for it if transcribed. See Pen.Code, § 869, 5th subd., as amended by Stats., 1881, p. 18; Mattingly v. Nichols, 133 Cal. 332, 65 P. 748; and Fursdon v. County of Los Angeles, 100 Cal.App.2d Supp. 845, 223 P.2d 520.
The judicial decisions which construe [236 P.2d 882] and apply the 1927 amendment, thus far rendered, tend to support the views herein expressed.
In People v. Bird, 212 Cal. 632, 300 P. 23, the court affirmed a conviction of manslaughter upon an information charging murder, despite the fact that upon the preliminary examination the magistrate held the defendant to answer for manslaughter. The court observed that no lack of due process was involved, citing Lem Woon v. State of Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340, to the point that provision for prosecution of a crime by a prosecuting attorney, upon filing his own affidavit of probable cause without providing for examination or commitment by a magistrate, does not violate the due process clause of the federal Constitution. The court found that the words 'as may be prescribed by law' (in section 8 of article I of our state Constitution) authorize the Legislature to prescribe the procedure for information as well as for indictment; that it is not a delegation of judicial power to the district attorney to authorize him, when drafting an information, to determine what the charge should be, based upon the evidence, irrespective of the offense mentioned in the order of commitment; and that section 8 of article I of the Constitution does not provide that the magistrate shall have the power to designate the crime, much less the exclusive power so to designate. 'When the magistrate has concluded that a crime has been committed and that there is sufficient cause to believe the defendant guilty thereof, he has performed his function under the common law practice (O'campo v. United States, 234 U.S. 91, 100, 34 S.Ct. 712, 58 L.Ed. 1231), and has performed all that the Constitution of this state required of him. The fact that the Legislature has required of him under section 872 of the Penal Code that he name the offense in the order of commitment and under section 877 of the same code that the commitment state briefly the nature of the offense, is not to deny to the same legislative authority the power to say that the designation of the offense shall not be exclusively in the magistrate, but that the responsibility therefor shall devolve likewise and finally on the public officer who is charged with the duty of conducting the prosecution in the superior court.' 212 Cal. at pages 642-643, 300 P. at page 27.
The court indicated there might be a limit to the literal application of the 1927 amendment, when it said: 'It is conceivable that the action of the district attorney might be without the pale of the legislative sanction. For instance, if the defendant should be complained against for grand theft and be informed against for bigamy, because, forsooth, there might be testimony before the magistrate that the defendant was guilty of the latter crime, a serious problem might be presented. But no such question is presented here. Murder and manslaughter are both homicides. The latter is included in the former and is one or the other, depending on the facts and circumstances attendant upon the killing. One transaction only is involved. Such is the situation in the present case.' 212 Cal. at pages 644-645, 300 P. at page 28. By that comment, we think the court meant that the district attorney should base his information upon competent evidence properly adduced at the preliminary examination. This is borne out by the decision in People v. Wyatt, 121 Cal.App. 180, 8 P.2d 901 (hearing in Supreme Court denied), which affirmed a judgment upon conviction of an offense not charged in the complaint nor mentioned in the order of commitment, nor growing out of the same transaction. 'It consisted of one of a series of alleged like offenses during a period of about two years, and was shown at the preliminary examination for the purpose of showing system and intent.' 121 Cal.App. at page 185, 8 P.2d at page 903. Evidence of such other offenses, thus properly admitted, was legally before the magistrate in the first instance, and later before the district attorney, for consideration. And there was involved no order of the magistrate discharging the defendant as to the offense in question.
In the greater number of cases, a decision sustaining an information which charged offenses differing from those charged in the order of commitment has involved, [236 P.2d 883] primarily, differing legal conclusions respectively drawn by the magistrate and the district attorney concerning the type of offense or offenses which a particular set or series of facts, evidenced at the preliminary examination, indicated. People v. Tallman, 27 Cal.2d 209, 163 P.2d 857, commitment for assault with intent to commit rape, the information also charging assault by means of force likely to produce great bodily injury; People v. McGee, 31 Cal.2d 229, 187 P.2d 706, commitment for manslaughter, the information charging murder; People v. Barnett, 99 Cal.App. 409, 278 P. 885, commitment for rape, the information also charging lewd and lascivious conduct; People v. Sturman, 56 Cal.App.2d 173, 132 P.2d 504, commitment for attempted burglary, the information also charging burglary.
Respondent invokes People v. Sanders, 102 Cal.App. 237, 283 P. 136, in which it appeared that the order of commitment designated the offense of attempting to commit robbery of one Knezvich, whereas the information in addition charged attempted robbery of one Summers, and also alleged that defendant committed burglary. It is not clear just how the evidence indicating burglary or the evidence of attempted robbery of Summers came into the case at the preliminary examination, nor whether those charges were alleged in the complaint or not. More particularly, it does not appear that the magistrate discharged the defendant in respect to any such additional charges, nor does it appear that the reviewing court's attention was called to any such questions. The defendant's attack upon these additional charges was based entirely upon a questioned constitutionality of the 1927 amendment to section 809. He claimed it was unconstitutional to authorize the district attorney to charge in the information any offense not mentioned in the order of commitment. In overruling that contention, the court in that case did not have occasion to decide, nor did it undertake to decide, the question whether or not the district attorney may base an information upon evidence which pertained solely to a count which the magistrate has dismissed for failure of proof that a public offense has been committed.
Another decision upon which respondent relies is People v. Malowitz, 133 Cal.App. 250, 24 P.2d 177. The order of commitment embraced five grand theft counts. The information, as amended, contained those five and an additional grand theft count. The defendant unsuccessfully claimed that the district attorney had no power to include any offense greater than or different from those for which he had been committed. The question posed in the instant case was not presented or considered in the Malowitz case.
In People v. Shutler, 15 Cal.App.2d 704, 59 P.2d 1050, the complaint charged kidnapping, rape, and violation of section 288 of the Penal Code. The order of commitment mentioned only kidnapping and rape. The information, as amended, charged all three offenses. In overruling defendant's contention that 'the refusal of the magistrate to commit him for violation of section 288 was a determination that the evidence did not show the commission of that offense' 15 Cal.App.2d at page 709, 59 P.2d at page 1052, the reviewing court said that the evidence taken at the preliminary examination was not before it, that the trial court had that evidence and found it sufficient to warrant the additional charge, and the reviewing court could not presume that the trial court erred in so holding. That, certainly was not a decision that, if a magistrate holds a defendant to answer on one count of a complaint and discharges him on another, the evidence peculiar to the latter is available for consideration in drafting charges for inclusion in the information.
Respondent further contends that prohibition is not an available remedy in such a case as this, citing Western Meat Co. v. Superior Court, 1908, 9 Cal.App. 538, 543-544, 99 P. 976. This point is not well taken. See Greenberg v. Superior Court, 19 Cal.2d 319, 121 P.2d 713; Cleland v. Superior Court, 52 Cal.App.2d 530, 126 P.2d 622; and § 999a, added to Pen.Code in 1949.
[236 P.2d 884] It seems appropriate to observe that if a magistrate erroneously dismisses a complaint, or a count of a complaint, and discharges a defendant, prosecution for the public offense involved is not necessarily at an end. The defendant, in such a case, has not yet been put in jeopardy. A second complaint, alleging the same facts, may be filed. Proceedings upon it will not abate because of the discharge upon the first complaint. Ex parte Fenton, 77 Cal. 183, 19 P. 267, and People v. Zadro, 20 Cal.App.2d 320, 66 P.2d 1204. Since indictment may be with or without examination and commitment, neither the pendency of a complaint before a magistrate, People v. Collins, 60 Cal.App. 263, 270, 212 P. 701 nor the discharge of a defendant by a magistrate, People v. Hrjak, 85 Cal.App. 301, 259 P. 353 precludes the grand jury from indicting for the same offense.
Respondent court is without jurisdiction to try petitioner on either of the two grand theft counts but has jurisdiction to try him on the count involving section 476a of the Penal Code. As so limited, the petition for the writ of prohibition is granted.
PETERS, P. J., and BRAY, J., concur.
The Convention adopted an address to the people of the state setting forth the salient points of difference between the old and the proposed new Constitution (pp. 1521-1524) and ordered that the address be published with the proposed Constitution (p. 1524). In respect to prosecution by indictment or by information, that address contained the following statement: "In reference to the grand jury, it is provided that offenses heretofore required to be prosecuted by indictment may be prosecuted by information, after examination and commitment by a Magistrate. This change dispenses with the necessity of drawing and summoning a grand jury to act upon every case before a party accused can be put on trial, and will be a great saving of expense to the various counties of the State. But to guard against possible abuse or favoritism on the part of the prosecuting officer, and for the purpose of investigating the conduct of officials and supervising the management of county affairs, a grand jury is required to be drawn and summoned at least once a year in each county. The practice of prosecuting by information instead of by indictment has been adopted in several of the States, and found to work well." (P. 1522.)