Whelan

Defendant was convicted of obtaining money under false pretenses, and appeals from the judgment and from orders denying a new trial and refusing to arrest the judgment.

Defendant demurred to an information filed against him, and the demurrer was sustained, but the court being of the opinion that the defects could be cured, directed that a new information be filed, as provided by section 1008 of the Penal Code. Instead of filing such new information, the district attorney laid the charge before the grand jury and procured an indictment against defendant for the offense.

Conceding, as contended, that this course was not in exact accord with the contemplation of the statute, it was, at most, but a mere irregularity which in no way affected any substantial right of the defendant. Whether he was proceeded against by information or indictment could not be material to him, since both methods are equally competent, and each subserves precisely the same purpose. Defendant did not move to set aside the indictment, and whether, therefore, the irregularity complained of constituted a ground for such motion, under section 995 of the Penal Code, need not be determined. He chose rather to make…