People v. McConnell

23 P. 40, 82 Cal. 620, 1890 Cal. LEXIS 614

• Court: California Supreme Court
• Decided: January 29, 1890
• Docket: No. 20583
• Status: Published

Opinion

Foote, C.

The defendant was convicted of the crime of burglary in the first degree. Prom the judgment rendered in the premises, and an order refusing him a new trial, he appeals.

The ground upon which his contention is based is, that he was not legally committed by a magistrate, and for that reason the superior court, which has tried him, had no jurisdiction to do so. ■ He did not make any motion to set aside the information, but raised the question by demurrer.

In order to sustain a demurrer to the information on the ground that the trial court is without jurisdiction of the offense charged therein, the want of such jurisdiction must appear from the face of the information. (Pen. Code, sec. 1004.)

A demurrer to an information on the ground that the defendant has not been legally committed by a magistrate is not permissible under the section of the Penal Code, supra. The point must be made on a motion to set aside the information. (Pen. Code, secs. 995, 996; Ex parte Moan, 65 Cal. 218.)

The motion in arrest of judgment made herein could not prevail, because it should have been founded upon defects in the information appearing on the face thereof. (Pen. Code, secs. 1004, 1185; People v. Johnson, 71 Cal. 392.)

The defendant asserts, in the points and authorities filed on his behalf, that it appears from the transcript he interposed a motion to set aside the information when he was arraigned, but the transcript fails anywhere to show that a motion to set aside the information was ever made.

We therefore advise that the judgment and order be affirmed.

Vancliff, C., and Gibson, C., concurred.

The Court.

— For the reasons given in the foregoing opinion, the judgment and order are affirmed.

Heaing in Bank denied.