Sanders

People of the State of California prosecute this appeal from an order of _ the Superior Court in and for the county of Los Angeles granting defendant’s motion in arrest of judgment.

It appears from the record that the defendant and respondent was bound over to the Superior Court by commitment issued by the committing magistrate for the crime of “attempt to commit robbery” from the person and presence of one Lawrence Knezvich. The district attorney in due course filed an information in the Superior Court charging the defendant and respondent in count I with the crime of “attempting to rob” one Lawrence Knezvich; in count II with the crime of “attempting to rob” one Jack Summers, and in count III with the crime of “burglary.”

The defendant filed a demurrer to the information, particularly attacking counts II and III, on the ground that the court had no jurisdiction to try the defendant for the offenses therein set forth for the reason that the commitment designated only the crime set forth in count I. The record does not indicate what ruling, if any, was made by the court on this demurrer. It appears, however, that the defendant plead “not guilty” to each of the counts and went to…

I dissent from the judgment. Particularly am I unable to agree that the questioned provisions .of section 809 of the Penal Code are not in violation of section 8, article I, of the Constitution of this state. ' By the terms of the statute, in the matter of preparing an information presumably based upon a commitment, the district attorney is authorized to exercise appellate jurisdiction over the judgment rendered by a committing magistrate. In the information the district attorney may charge not merely a lesser offense included within that for which the defendant was held to answer to the Superior Court, but may charge even a greater offense; or going still farther, as illustrated in the instant case, the district attorney may accuse the defendant with the commission of an offense entirely unrelated to that of which he was originally accused, or for which he was committed by the magistrate. As a further illustration, suppose that in a given case a defendant were charged with the crime of burglary and the evidence adduced on the preliminary examination showed that after the defendant had broken into the house which was burglarized, he had suddenly been confronted by a young woman,…