People v. Clement

The people appeal from an order in arrest of judgment. The information contained two counts—the first, for the larceny of a horse, buggy, and harness, and the second count charging an embezzlement of the same property. The defendant demurred to the information upon the ground that it charged more than one offense. The demurrer was overruled and a plea of not guilty entered. After all the evidence had been introduced, and during the argument of the case to the jury, the district attorney, with the consent of the court and without objection from the defendant withdrew the count charging embezzlement, and the jury found defendant “guilty of attempt to commit grand'larceny.’’ The defendant moved for a new trial and his motion was denied. He then moved in arrest of judgment, upon the ground stated in his demurrer, and, this motion being sustained, the people appeal.

That two distinct offenses are charged in the information has been decided by this court in at least two cases Avhere the facts were the same as here: See People v. De Coursey, 61 Cal. 134 , and People v. Quvise, 56 Cal. 396 . But appellant contends that the duplicity Avas cured by withdrawing the count charging…