Tarbox

The defendant was prosecuted upon an information for the crime of rape, alleged to have been committed at the county of Ventura, on September 28, 1895, upon the person of Sena Crane, a female under the age of fourteen years, was found guilty by the jury, and was sentenced to imprisonment in the state’s prison for the term of seven years. From that judgment, and *60 from an order denying his motion for a new trial, he appeals.

The information upon which he was tried was filed in the superior court on March 9, 1896, and the depositions, transcript, and order of commitment were not returned to the superior court by the examining magistrate until March 10, 1896.

Upon his arraignment, the defendant moved to set aside the information, upon the ground that it was filed before any commitment, deposition, or other record showing that he had had a preliminary examination, had been returned or filed in said court, and upon the further ground that no order of commitment was indorsed upon the depositions afterward returned. Said motion was denied, and- the defendant excepted.

Good practice requires that the return of the examining magistrate should be made and filed before the information…

I concur in the judgment of reversal, although I am not as entirely clear that it is correct as I would like to be. I am the more inclined to concur because it seems likely that the jury erroneously based their verdict more upon the circumstance that neither the prosecuting witness nor the appellant testified, than upon the sufficiency of the evidence actually introduced. The girl may have refused to testify because she could not truthfully incriminate the appellant; and, as to a defendant in a criminal action, under the code, “His neglect or refusal to be a witness cannot in any manner prejudice him nor be used against him on the trial or proceeding.”