The evidence objected to was clearly admissible, not as a statement of a co-conspirator, but because the conduct of the defendant was relevant as an admission of guilt when accused of sharing in the crime. The jury might well believe that no innocent man would remain silent when accused of participation in such atrocious conduct. Silence under these circumstances may always be proved. (People v. Amaya, 134 Cal. 531 [66 Pac. 794]; People v. Philbon, 138 Cal. 530 [71 Pac. 650; People v. Bradley, 23 Cal. App. 44 [136 Pac. 955]; People v. Ayhens, 16 Cal. App. 618 [117 Pac. 789].) Of course, the statements made by Radecki and Blaszyk could not be received except to explain and aid the jury in construing the defendant's conduct. The fact that the defendant was under arrest when the statement was made does not render it any less admissible. (People v. Amaya, supra; People v. Schoon, 177 Cal. 678 [171 Pac. 680]; People v. Byrne, 160 Cal. 217 [116 Pac. 521]; People v. McCrea, 32 Cal. 98; People v. Estrado, 49 Cal. 171; People v. Ah Yute, 53 Cal. 613.)

[2] An implied admission may have as much weight as one made in express terms, and what evidentiary value shall be given to either in any case is a matter for the jury to determine. We think the entire evidence warranted the verdict of guilty which was rendered. [3] The following instruction was given by the court, and appellant contends this constituted prejudicial error. "A conspirator having confessed, it is competent to prove admissions and declarations made by him to a co-conspirator, as tending to corroborate the proof of confession and establish the fact confessed." Inasmuch as no confession was introduced except those of Blaszyk and Radecki, it cannot be assumed that the jury regarded this instruction as having any application to Shelest. No witness testified to a confession by him and as it was received the trial court expressly limited the testimony concerning the confessions of Blaszyk and Radecki to the People's case against Blaszyk. Under the circumstances it is not conceivable that Shelest could have been injured by it.

[4] Appellant insists that the court committed error in refusing to give the following instruction requested by him: "You are instructed that no acts or declarations of the defendants Adam Blaszyk and Valentine Radecki, not made

in the presence of the defendant John Shelest and not affirmed by him, are to be considered as evidence against the defendant John Shelest." This instruction was properly refused. If a conspiracy was shown to exist between Blaszyk and Radecki and Shelest to take the life of Mrs. Wheelock, acts and declarations of Blaszyk or Radecki in furtherance of the conspiracy would be evidence against Shelest. The instruction would exclude all acts and declarations of the other conspirators unless made in the presence of Shelest or affirmed by him. This is not the law.

[5] It is urged that the motion for a new trial should have been granted and that its denial was reversible error. This motion was founded upon alleged newly discovered evidence. The basis of this claim is that Shelest's codefendant Blaszyk, subsequent to the trial, made an affidavit to the effect that it is not true that Shelest told him to tie the handkerchief around Mrs. Wheelock's neck, nor was he present when this was done, and that Radecki had told Blaszyk that Shelest told him, Blaszyk, to tie the handkerchief. Blaszyk was present in court at the time of the trial. No formal attempt was made to have him testify. Blaszyk and Shelest were represented by different counsel and it is claimed that Blaszyk's attorney informed appellant's counsel that the latter would not testify. However, no subpoena was issued for Blaszyk, nor was he asked to take the stand during the trial, although continually in the courtroom. Under these circumstances, we think the trial court properly denied the motion for a new trial. The judgment and order are affirmed.

Finlayson, P. J., and Works, J., concurred.

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 July 12, 1923.

[Crim. No. 950. Second Appellate District, Division Two.-May 16,

1923.]

THE PEOPLE, Respondent, v. AUBREY NORMAN et al.,

[1] CRIMINAL LAW

Appellants.

-CON

- DRIVING AUTOMOBILE WITHOUT CONSENT STRUCTION OF COMMITMENT. -A commitment for "driving an automobile without the owner's consent" does not hold the defendant to answer, under section 499b of the Penal Code, a misdemeanor, but constitutes an attempt to commit the defendant for a violation of section 21 of the Motor Vehicle Act, a felony. [2] ID. DEFECTIVE COMMITMENT - DISCRETION TO ORDER CORRECTION. Where a defendant is held to answer for "driving an automobile without the owner's consent," but the district attorney files an information charging the defendant with a felony, to wit, operating an automobile “upon the public highways" without the owner's consent, and the defendant, upon arraignment, moves to set aside the information on the ground that he was not legally committed by a magistrate, the court, although it denies the motion, may make an order directing the clerk to transmit the papers in the case to the committing magistrate, with directions to correct the commitment and recertify it to the superior

court.

[3] ID.

FAILURE TO SET ASIDE INFORMATION WANT OF PREJUDICE —APPEAL.—In such a prosecution, where the record clearly shows the defendant to have been guilty of the offense for which he was tried under a second imformation and sentenced, the judg ment will not be reversed on appeal because of the irregularity of the trial court in not formally granting the motion to set aside the first information when it directed the correction of the commitment.

APPEAL from a judgment of the Superior Court of San Diego County. S. M. Marsh, Judge. Affirmed.

The facts are stated in the opinion of the court.

Edward J. Kelly for Appellants.

U. S. Webb, Attorney-General, John W. Maltman, Deputy Attorney-General, and Lorrin Andrews for Respondent.

CRAIG, J.-The defendants were convicted of operating an automobile upon the public highwaya without the own

er's consent, a felony. The court denied their motion for a new trial and pronounced judgment, from which this appeal was taken. The ground urged for reversal is that the defendants were not legally committed by a magistrate.

The proceedings upon which they rely are as follows: The prosecution was begun in the usual manner and after a preliminary examination before a magistrate the defendants were held to answer for "driving an automobile without the owner's consent. An information was filed by the district attorney charging the defendants with a felony, to wit, operating an automobile upon the public highways without the owner's consent. Defendants were arraigned in the superior court and moved to set aside the information on the ground that they were not legally committed by a magistrate. The court denied the motion, expressing an opinion that the magistrate should amend the commitment and thereafter made an order directing the clerk to transmit the papers in the case to the committing magistrate, and that the justice be directed to correct the commitment and recertify it to the superior court.

Thereupon the committing magistrate signed a new commitment, holding the defendants to answer for operating an automobile upon the public highways without the owner's consent. In due time the defendants were again arraigned and moved to set the information aside upon the same grounds as before. This motion was denied. A plea of not guilty was entered and, after a trial, the defendants were convicted.

It is urged that under the first commitment the defendants were held to answer for a misdemeanor. Our attention is called to section 499b of the Penal Code, which makes it a misdemeanor for a person "without the permission of the owner" to "take any automobile . . . for the purpose of temporarily using or operating the same." Section 28 of the motor vehicle law (Stats. 1915, p. 397), as amended in 1917 by section 21 thereof, provides that "it shall be unlawful for any person to drive or operate. . . upon public highways any motor vehicle not his own, whether with or without intent to steal the same, in the absence of the owner thereof and without such owner's consent," and makes a violation of this provision a felony. Appellant argues that since the words "public highways" were omitted

from the first commitment, the defendants were thereby held to answer only for the misdemeanor denounced in section 499b of the Penal Code; further, that all that followed in the superior court and the subsequent commitment by the justice of the peace were without jurisdiction.

[1] It cannot be said that the first commitment held the defendants to answer under section 499b. That provision does not denounce the driving of an automobile on the public highways or elsewhere. It makes only the taking of an automobile under the circumstances therein described an offense; it is obvious that to take a vehicle is quite different from driving or operating it.

On the other hand, this commitment did not completely and regularly state the offense named in the Motor Vehicle Act, since, as pointed out by the appellants, it did not allege that they drove the automobile in question upon the public highways. However, it is quite evident that the magistrate attempted to commit the defendants for a violation of section 21 of that act and the superior court so construed the commitment. [2] It is true that the order made was that the motion to set aside the information be denied. Nevertheless, the court further directed that the commitment be sent back and that the magistrate make out another. This was done and a new or amended information filed. The original commitment charged no offense. This resulted from the technical omission of the words "upon the public highways." The superior court had full authority to set aside the first information. It also could have returned the commitment to the magistrate for recommitment, and this it did. (Sec. 997, Pen. Code; Ex parte Fowler, 5 Cal. App. 549, at p. 554 [90 Pac. 958].) The effect of the entire procedure in that court was the same as though the order upon the first motion to set aside the information had been that the same be set aside and that the matter be resubmitted to the magistrate. Had this order been made the omission in the original commitment which produced the irregularity could have been cured by the magistrate merely making out a new one, as was done, without a second examination and again taking testimony. (Ex parte Fowler, supra.) In that case it is said that the omission of the words "with malice aforethought" necessary to a complete description of the crime of assault with a deadly weapon