The herald., 1894-03-03
CLEMENTS LUCK HAS CHANGED
The Supreme Court Comes to
His Assistance.
They Go for Those Double-Headed
InfOrmatiOns
By which 80 Many Criminals Have
Been Turned Loose A Big
Batch of Opinions Ro-
oeived Yesterday.

court in the case of the People vs. O. H.
Clement. defendant.
In this case the people appealed from
an order in arrest OF judgment. The
information contained two counts, the
first for larceny OF horse, buggy and
harness, and the second count charging
an embezzlement OF the same property.
The defendant demurred to the infor-
nation upon the ground that it charged
more than one offense. The demurrer
was overruled, and plea of not guilty
WAS entered.
After all the evidence had been intro
duced. and during the argumen of the
case to the jury, the district attorney,
with the consent OF the court and with
out objection from the defendant, with
drew the count charging embezzlement,
and the jury found the 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 sp-
pealed.
The interesting questions raised are
thus discussed by the supreme court:
That TWO distinct otfenses are
charged in the information has been de-
cided by this court in at least two cases
where the facts were the same as here"
But the court continues that appellant
contends that the duplicity was cured
by withdrawing the count charging en-
bezzlement, and cites authorities.
These authorities, says the court,
however, are under the old procedure,
which permitted several counts, and
where, upon the face OF the indictment,
each count charged as distinct offenss.
But under that procedure the defendant
was required to plead to each count, and
thus q distinct issue was made upon
each, and the jury was required to find
npon each count as to which there wRs a
plea of not guilty; and while the dis
trict attorney might enter nolle as to
one or more counts, il this were done
after the jury was sworn, unless the
defendant consented, it was a bar TO a
further or new prosecution for the Of
tense charged in such count. This,
however, did not affect the issues upon
the other counts.
But here the information was framed
upon the theory that but one offense
was charged, and it was upon that
theory that the demurrer was overruled
and q single plea OF not guilty was
taken.
As the defendant could not be re-
ouired to plead to two of1snses charged
in the same information it cannot be
said that issue was joined as to either
ofense, and notwithstanding one of TIA 9
counts 60. ni,, after the plea. cure the defect;
was nlss AZ ID 1contended that there
not be said that it applied to one OF the
offenses rather than the other.
II the demurrer had been sustained,
as it should have been, and the district
attorney had then taken leave to amend
by striking out the second count, and
the plea had been taken az to the first,
the defect would have been cured
The information being bad under the
statute, it could not be amended after
the deisndant's plea was taken without
q new arrangement and plea to the
amended information.
It is further contended by appellant
that by moving for new trial the de-
fendant waived his right to move in ar
rest of judgment. This contention can
not be sustained.
The supreme court, after further dis
cussion, says that the motion in arrest
of Judgment was properly sustained and
the order appealed from lie affirmed.
An opinion was received in which the
decision of the superior court of San
Luis Obispo county in the case of Hir-
am A. Dooley, respondent, We. $500
head of sheep, appellants, is reversed
and the cause remanded for new trial.
The action was brought to recover $7506
damages alleged to have been suffered
by plaintiff in consequence OF trespssses
of the defendant sheep upon $3.50 acres
of uninclosed lands of the plaintiff in
San Luis Obspo county. The court ad-
| Judged that the damage was committed
bv certain eheep and amounted to 1882; ;
that they be sold and the proceeds ap-
piled to the payment OF the Judgment; /;
the eurplu5 to 20 to Gracian Solaberry,
the owner of the brands embraced in
the judgment. The supreme court does
not think the evidence justified the
Judgment and holds as before stated.
The supreme court has affirmed the
Judgment and order in the case of H.
Conner. respondent, vs. the Southern
California Motor Road company, appel
liant.
It was conceded by the appellant that
the appeal from the judgment cannot
be considered, because taken too late
and the respondent claims that the ap-
peal from the order denying new trial
cannot be considered upon ite merits,
because the statement was not settled
within the time required by the code oi
civil procedure.
The court in affirming the Judgment
and order denying new trial, says that
to hold that the statement may be set
tied when no steps were taken unit
after the expiration OF the 10 days. the
time for doing so not having been ex
tended, and respondent objecting there
to, would be a judicial abrogation OF thu
statute.
In the case OF Joseph Haoer, respond
ent. va. Martha l.. Brown ct al, de
PENDANTS, the cause is Iemanded to thu
superior court of San Diego county witt
instructions to modify the judgmen
rendered in accordance with the opinion
handed down.
In the cases of Jere Cemens. respond
ent. VS.. Nj. Luce and Henry W. Magee
Samuel Cooper ct at, respondents, VS.
d. o. MCCARTHY ct al, appellants, am
Levi Chase, respondent, vs. W. y. Hlgl
ct al, appellants, the supreme cour
o-ders the causes remanded to the lowe
court, with directions to modify th
Judgment by striking out theretrom tn
> S.l- Hon ~