Bianchino

Defendant was convicted of the crime of rape, alleged to have been committed on the person of Annie Lertora, a child of the age of five years, and was sentenced to a term in the state prison at Folsom. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

1. It is contended that the court erred in denying the motion of defendant to set aside the information. The motion was as follows: “Now comes the defendant in the above entitled action, and moves the court to set aside the information on file herein on the ground that before the filing thereof, he, the said defendant, had not been legally committed by a magistrate.” The evidence, however, introduced in support of the motion, proves to the contrary that the defendant ivas legally committed by the magistrate. The order indorsed on the complaint or deposition and signed by the committing magistrate is as follows: “It appearing to me that the offense, to wit, Felony, Rape, in the within complaint mentioned has been committed and there is sufficient cause to believe the within Amadeo Bianchino guilty thereof, I order that he be held to answer the same,” etc.

The foregoing order seems to…