PEOPLE v. DAL PORTO (1936)

The appellant, by his petition for rehearing herein, urged upon the court the contention that he was illegally informed against, tried, and convicted of the crime of conspiracy; that no conspiracy was shown by the testimony taken at the preliminary hearing; and that the appellant was held on the charge of possession of the still alone; and that the commitment was upon the charge of commitment alone.

Under the provisions of section 995 of the Penal Code a motion may be made to set aside an information on the ground “that before the filing thereof the defendant had not been legally committed by a magistrate.”

The following excerpt from the case of People v. Malowitz, 133 Cal.App. 250, 24 P.(2d) 177, 178, defines what is meant by “illegally committed”: “It is contended that the defendants had not been legally committed, because the evidence before the magistrate did not show that a public offense had been committed. If the magistrate had no power or jurisdiction to hold the examination, if no complaint had been made charging the defendants with a public offense, and perhaps if no evidence at all was taken by the magistrate, and there was no waiver by the defendants, it might be held that the defendants had not been legally committed. People v. Howard, 111 Cal. 655, 44 P. 342. The phrase ‘legally committed’ refers to the examination of the charge and holding the defendant to answer by the magistrate. Ex parte Baker, 88 Cal. 84, 25 P. 966. If a magistrate, upon a complaint duly made, and charging a public offense, has heard the evidence, and has committed the defendant, that ends the matter so far as concerns this motion. ‘The question here is not, as upon habeas corpus, whether a person is illegally deprived of his liberty, but whether he can legally be tried upon a criminal charge. * * * The right to have a charge dismissed is regulated by statute, and, as we have seen, the phrase “legally committed” means only that the accused has been committed by a magistrate who has jurisdiction to hold the examination, and who has actually heard the evidence, and determined that probable cause exists for holding the defendant.”’

Section 809 of the Penal Code authorizes the district attorney to charge a defendant, when filing an information, with any offense shown by the testimony taken at the preliminary examination. An examination of the testimony taken at the preliminary examination which is set out in the transcript shows that the testimony there taken is substantially the same and almost identical with the testimony given upon the trial of the action, and we think establishes the offense of conspiracy beyond controversy. As pointed out in our opinion in this case, conspiracy may be shown by circumstances and does not need to be established by what is called direct testimony.

The petition for a rehearing herein is denied.

PER CURIAM.