Thompson

The defendant was convicted of grand larceny upon an information charging him with robbery. He appeals from the judgment therein rendered, and from an order denying a new trial.

His first point is, that the court erred in refusing to set aside an information filed on the 23d of October, 1889.

*600 An information for the same offense had been filed on the 7th of September, 1889, and was set aside, on motion, on the 31st of October, 1889, after the second information had been filed.

The reasons assigned why the court should have set aside the last information are, that the magistrate who examined the defendant made a defective commitment, and that therefore the information had no proper basis on which to rest, and the district attorney no authority to file it.

It is true that the indorsement upon the deposition or complaint, as first made, on the 13th of August, 1889, and returned to the superior court, was not in accordance with the statute, and that the information based on it was properly set aside.

There being no proper commitment nor information before the superior court, that tribunal could not try the defendant, and the papers thus sent up by the magistrate had no place…