Parker

An information was filed charging the defendant with the crime of burglary.

Before pleading, he moved to set aside the information upon the ground “ that he had not been legally com *93 mitted by a magistrate.” Upon the hearing of the motion it was shown that G. W. Ditman filed a sworn complaint before a magistrate, alleging “that one Flem Parker, on or about the 20th of November, 3890, and before the filing of this complaint, at the county of Tulare, state of California, did willfully and unlawfully enter a barn with intent to commit larceny, said barn being located on the Simmons ranch, in said ICaweah township,” etc. There was no other depositions in the case, and upon the complaint was indorsed the following commitment: “It appearing to me that the offense in the within deposition mentioned has been committed, and that there is sufficient cause to believe the within-named Flem Parker guilty thereof,” etc. The information charges that “the said Flem Parker, on or about the twentieth day of November, 1890, and before the filing of this information, at the county and state aforesaid, did willfully, unlawfully, and feloniously enter a certain barn, the property of one G. W.…

If the question were an open one, I should say that an information could not be sustained unless it charged the offense charged in the complaint, and for which he was examined and committed by the magistrate. Such, appears to me, is the view of the supreme court of the United States in Hurtado v. California, 110 U. S. 516 . Our own cases, however, hold that the district attorney may prosecute for any offense shown by the depositions taken on the preliminary examination. I therefore concur.