Tinnen

The defendant was informed against by the district attorney of Tehama County, in the superior court thereof, for the crime of administering poison to another person maliciously and with intent to kill said person. He was tried and convicted by a jury under said information, and he brings this appeal to this court from the judgment and the order denying his motion for a new trial.

The point first made by the appellant is that the court below erred in denying his motion to set aside the information on the ground that he had not been legally committed by a magistrate and that he had not been committed by the magistrate for the offense charged in the information.

The information is founded on section 216 of the Penal Code, which is in language as follows: " Every person who, with intent to kill, administers or causes or procures to be administered, to another, any poison or other noxious or destructive substance or liquid, but by which death is not caused, is punishable by imprisonment in the state prison not less than ten years.”

The point that the accused was not legally committed is founded upon the theory that there is a variance between the offense for which the defendant was…