People v. Boyle

Opinion — McKinstry

McKinstry, J.

Defendant moved to set aside the information on the ground that he had not been legally held to answer, in that, the commitment showed upon its face that defendant had previously been convicted of the offense for which he was held to answer. As the commitment is not in the transcript we cannot say what is shown upon its face.

Defendant demurred to the information—that it does not substantially conform to the requirements of sections 950, 951, and 952 of the Penal Code, and that more than one offense is charged therein.

The information contains all the averments required by the sections of the Penal Code. It also contains an averment, that, before the commission of the offense therein charged, defendant was convicted of petit larceny in a Justice’s Court.

If, by reason of the repeal of section 969 of the Penal Code, *155which took effect April 9, 1880, it is no longer proper to allege a former conviction in an information or indictment, the averment with respect to the previous conviction is surplusage, which should be stricken out or disregarded. The statement that defendant had previously been convicted of a larceny is not a distinct charge of larceny to be tried under the information. Two offenses are not therefore charged in the information. If, by reason of the language employed in section 1158 of the Penal Code, au averment of a former conviction is proper, the information is unobjectionable. The demurrer should therefore have been overruled.

Judgment and order reversed and cause remanded with direction to the court below to overrule and disallow defendant’s demurrer to the information.

Thornton, J., Eoss, J., Myrick, J., and McKee, J., concurred.