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District Court of Appeal, Third District, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Harvey Robert DOWNER, Defendant and Appellant.*

Cr. 3099.

Decided: September 20, 1961

William P. Callahan, San Francisco, for appellant. Stanley Mosk, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and John Foran, Deputy Atty. Gen., for respondent.

This is an appeal from a judgment declaring appellant guilty of the crime of attempted incest.

A criminal complaint was filed in the Justice Court of the Weaverville Judicial District of Trinity County which charged appellant with the crime of incest alleged to have been committed with his daughter. In a second count appellant was charged with forcible rape. Both offenses were alleged to have been committed on December 5, 1959, and it is clear from the record that the same transaction furnished the basis of both charges. At the preliminary examination before the magistrate the alleged victim testified as follows: On the 5th of December, 1959, she resided in Trinity County with her father. They lived in a trailer house. On the night of her 5th of December her father came into her sleeping quarters in the trailer between 10 and 11 o'clock at night. He stated he wanted some relief. She knew what he was in there for. There was an extensive argument and struggle between the two. They slapped each other around. He was trying to tear her clothes off and succeeded. He was dressed in his underwear which he removed. He succeeded in having intercourse with her. He had done the same thing to her on previous occasions over a period of about two years, the last five or six occurrences happening in Trinity County.

The sufficiency of the foregoing to justify an order of commitment is unquestioned and the magistrate held the accused to answer to the superior court on both counts of the complaint. The district attorney filed an information based on the order of commitment, charging both rape and incest. Count One of the information charged incest. Count Two charged rape. Both offenses were alleged to have been committed on the 5th day of December, 1959. But the district attorney added a third count charging attempted incest alleged to have been committed on the 16th day of December, 1959.

In due time counsel for defendant moved the superior court for an order under Section 995 of the Penal Code setting aside the information upon the grounds that he had not been legally committed by a magistrate and had been committed without reasonable or probable cause. The motion was denied and the cause went to trial upon all three counts. The jury acquitted the defendant of the charge that on December 5th he had committed the crime of rape, disagreed as to his guilt of the crime of incest on the same date, and found him guilty of the crime of attempted incest committed on December 16th. The count charging incest was dismissed on motion of the prosecution. This appeal is concerned only with the judgment based on the charge of attempted incest alleged to have been committed on December 16th.

Although appellant assigns many errors and charges insufficiency of the evidence, it will be unnecessary to discuss any assignment other than the one based upon the alleged error of the trial court in putting appellant to his trial upon the charge of attempted incest after overruling his motion for the dismissal of that charge. We have concluded that in this respect appellant's contentions are sound and that the judgment appealed from must be reversed.

‘An information may charge the defendant with either 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. Though the power of the district attorney to file an information depends on the issuance of an order of commitment, he may, under the statute and without violating constitutional provisions, file an information charging a crime shown by the evidence taken before the magistrate that is different from, but related to the one designated in the commitment order and that bears on the transaction involved in the commitment order. * * * On the other hand, an information cannot designate a crime or crimes unrelated to or unconnected with the transaction that was the basis of the commitment order.’ 26 Cal.Jur.2d, sec. 41, p. 499.

The only reference in the preliminary proceedings to an attempted incest on December 16th occurred during the crossexamination of the prosecutrix. It had been developed that on the 17th of December her younger brother, who also resided in the father's trailer, had left home and when apprehended by officers had given as his reason for running away that he did not like what had been going on between his father and his sister. As a result of that statement she was called into the district attorney's office and questioned concerning these relations. She first denied the assertions of her brother but on a second visit to the district attorney's office gave information which was the basis of the complaint filed thereafter. During her cross-examination at the preliminary hearing the following took place:

‘Q. Now, you mentioned the occasion of the visit to the District Attorney involved your brother leaving home, is that correct? A. Yes.

‘Q. Was there a fight of any kind before he left? A. The night before.

‘Q. And without going into detail, because it is probably more or less irrelevant, but just in a general way, what was the fight about? A. Well, my father and I had a gight in my bedroom that night.

‘Q. Your father and you did? A. Yes.

‘Q. What part did your brother play in that? A. Well, no part, but I suppose he heard it.

‘Q. And was the fight about sex? A. Yes.

‘Q. Was it the same sort of thing? A. Yes.

‘Q. Why do you say you suppose your brother heard it? Was he nearby? A. Well, he was in the other bedroom.

‘Q. Did he come in the room at any time? A. No.

‘Q. What was the outcome of that fight? A. Well, I wound up with a bloody nose and he got mad and left.

‘Q. I take it there was no sexual relations? A. No.’

Applying the rule hereinbefore stated in our quotation from California Jurisprudence 2d, it is apparent that the district attorney was not justified in including a count of attempted incest occurring on December 16, 1959. There is no showing that the two transactions were in any way related or that one bore upon the other. It is equally apparent that there was no showing of probable cause to support the charge of attempted incest.

‘* * * [W]hether pursuant to commitment or by inclusion in the information in proper cases, the constitution and the statute protect the petitioner from trial on the criminal charge until probable cause has been established by the taking of evidence under oath.’ Parks v. Superior Court, 38 Cal.2d 609, 614, 241 P.2d 521, 524.

The result of the foregoing is that the trial court was without jurisdiction to try appellant upon the charge of attempted incest.

The judgment appealed from is reversed.

VAN DYKE, Presiding Justice.

SCHOTTKY and PEEK, JJ., concur.

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