[Crim. No. 660.

First Appellate District.

November 16, 1916.]

#### THE PEOPLE, Respondent, v. LUCK SING, Appellant.

Criminal Law—Misdemeanor—Amended Information — Presumption on Appeal.—Upon an appeal from a judgment and order denying a new trial in a prosecution under the Wyllie Local Option Act, where the punishment imposed made the offense a misdemeanor, and the record showed that after one information had been filed without the defendant having been brought to trial within sixty days, such information was dismissed for the purpose of. filing an amended information, and thereafter another information was filed setting forth in three counts three distinct violations of the act, whereas the first information alleged but two, it will be presumed that the second information was an amended information, in the absence of any affirmative showing that the second information was based upon a second preliminary examination.

APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. H. *Z.*Austin, Judge.

The facts are stated in the opinion of the court.

Geo. G. Graham, for Appellant.

U. S. Webb, Attorney-General, and John H. Riordan, Deputy Attorney-General, for Respondent.

THE COURT.

Defendant was accused by information with the violation of the Wyllie local option law in the county of Fresno. The information contained three counts, charging as many violations of said law. Defendant was convicted upon all three counts, and sentenced to pay a fine of five hundred dollars, or in lieu thereof to be imprisoned in the county jail of the county of Fresno at the rate of one day’s imprisonment for every two dollars of said fine until the same shall have been satisfied. The present appeal is from said judgment and an order denying defendant’s motion for a new trial.

The punishment imposed in this case made the offense a misdemeanor; and, under the provisions of section 1387 of the Penal Code, a dismissal of an action in such a ease is a bar to another prosecution unless the order is expressly made *92for the purpose of amending the complaint in the action. Prom the record it appears that after one information had been filed against the defendant without the defendant having been brought to trial within sixty days, that information upon motion of the district attorney was dismissed for the purpose of filing an amended complaint in the action. Thereafter another information was filed against the defendant setting forth in three counts three distinct violations of the act, whereas the former information had set forth but two. It seems that if the new information was not based upon the preliminary examination under which the defendant was held to answer and the first information filed, but upon a new proceeding in the justice’s court, we would be required to hold, as contended by appellant, such new information would not come within the designation “amended complaint” as used in said section 1387, and that the defendant would by virtue of that section be entitled to a dismissal of the present action. The record, however, fails to show that there was a second preliminary examination, or that the information upon which the defendant was tried and convicted is not just what it purports to be, namely, an amended information. No error, therefore, is shown; and we will presume in harmony with settled law that the court proceeded regularly and that the trial and conviction were had under an amended complaint. *(People*v. *Disperati,*11 Cal. App. 469, 474, [105 Pac. 617].)

No error was committed by the trial court in its instructions to the jury, and the evidence amply sustains the judgment.

Judgment and order appealed from are affirmed.

A petition for a rehearing of this cause was denied by the supreme court on December 15, 1916, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 15,1917.