DocketNumber: Docket No. 1261.
Citation Numbers: 23 P.2d 812, 133 Cal. App. 114, 1933 Cal. App. LEXIS 545
Judges: Plummer
Filed Date: 6/30/1933
Status: Precedential
Modified Date: 10/19/2024
The defendants were convicted of grand theft and of burglary in the second degree, upon an information in two counts charging them with the two offenses, in the following language, to wit: "That on or about the 30th day of August, 1932, in the county of Placer, state of California, they did then and there wilfully, unlawfully and feloniously steal and take the following described property, to-wit: 9 cases of cigarettes, of the reasonable and fair market value of $576.00, which said cases of cigarettes were then and there in the possession of the Southern Pacific Company, a corporation, as bailee, in a certain railroad car, Southern Pacific No. 25362, which car was in train No. 486, prosecuting its trip through the counties of Placer and Nevada, state of California, and which said cases of cigarettes were at the said time the personal property of another, and not the property of the defendants, with the felonious intent then and there to commit the crime of grand theft."
Count 2 of the information, in its charging part, reads as follows: "That on or about the 30th day of August, 1932, in the county of Placer, state of California, they did then and there wilfully, unlawfully and feloniously enter a certain railroad car, to-wit: Southern Pacific No. 25362, which said railroad car was then and there in train No. 486, and prosecuting its trip through the counties of Placer and Nevada, state of California, with the intent then and there to commit the crime of grand theft."
The defendant Worth was further charged with a prior offense, as follows: "That the defendant Alfred L. Worth, before the commission of the offenses charged in this information, was, in the superior court of the state of California, in and for the county of Tuolumne, convicted of the crime of petty theft."
Upon arraignment, the defendants demurred to the information on the ground that it did not conform to the requirements of sections
[1] It appears that during the course of the trial the district attorney was permitted to amend the information by inserting the words "which said railroad car was then and there in train No. 486, and prosecuting its trip through the counties of Placer and Nevada, state of California".
The original information is not made a part of the record, but there appears to be no contention on the part of the respondent that the original information did not allege that the car was in a train prosecuting its trip through the counties referred to.
By section
At the time of the rendition of this decision, there was no provision in the Penal Code authorizing district attorneys to submit, and the court to allow, amendments as provided for in section
It thus clearly appears from the case relied upon by the appellants from which we have just quoted, that the amendment to the information was not to the prejudice of the defendants, but is an amendment which operates in their favor, for the simple reason that it estops further prosecution for the offenses charged in other counties through which the train passed in prosecuting its trip through the state of California.
The record further shows that no continuance was asked for; that the defendants stated they were content to rest upon their original plea, and the trial proceeded as though the information had originally read as it stood amended. Amendments to informations have been so frequently allowed where it appears that no prejudice has been suffered by the defendants that it seems to us unnecessary to encumber the record with citation of the cases where such amendments have been allowed.
One case, however, which permitted the addition of an allegation supplying a jurisdictional fact, may be referred *Page 119
to. In People v. Bonfanti,
The record shows that nine packages of cigarettes were recovered of those thrown from the train, although the testimony also shows that the eleven packages of cigarettes were thrown out of the car. The defendants were then arrested and taken to Auburn, where their preliminary examination was held. The testimony developed that the place where the packages of cigarettes were found was in the county of Nevada, and distant from the boundary line between the counties of Placer and Nevada about 2,900 feet.
[2] We may now consider the motion to set aside the information on the ground that the defendants had not been legally committed. A complete answer to the alleged error on the part of the court in denying this motion is in the entire want of the record to exhibit either the complaint filed before the justice of the peace in Auburn and the testimony there taken. All that the record shows is simply the motion.
In the case of People v. Williams,
For all that appears in the record, the facts giving the justice of the peace at Auburn jurisdiction appeared in the complaint and in the testimony, and nothing appearing in the record to the contrary, we must presume that the trial court was justified by the showing made before it to deny the appellants' motion. *Page 121
[3] Under section
[4] The appellants make the further objection that under the provisions of section
So far as the record is concerned it does not appear that this objection was raised, or any advantage taken of the provisions of this section prior to the beginning of the trial in the superior court. From what we have stated, it is evident that the justice of the peace at Auburn had jurisdiction to hear the preliminary examination of the defendants charged with the offenses alleged in the information. That the arresting officer may have committed a wrong against the appellants does not affect the jurisdiction of the justice of the peace at Auburn. If any injury was suffered by reason of the failure of the arresting officer to comply with section
In addition to the testimony which we have stated with regard to the railroad detective seeing the packages of cigarettes thrown from the car, and the return of the defendants to pick up the cigarettes, we may refer to the testimony of the witness J.R. Martin. After testifying that the "railroad officer" came to the work car where he was with the two prisoners, and placing them in his charge *Page 122 while the officer went back with a handcar to pick up the packages of cigarettes, the following conversation took place between him and the defendant Worth, in the presence of the defendant Arnest: "The defendant Worth said to me: ``What kind of cigarettes do you smoke?' I said, ``Chester-field's.' He said, ``They found nine cases of cigarettes. I threw out eleven cases. I don't think you will have to change the brand. After we start to Auburn, you go down and get the cigarettes.' The defendant Worth then asked Arnest if the officer caught him with the packages or cartons, it was, in his possession. Arnest says, ``Yes.' He says, ``You can't swear that he didn't.' Arnest says, ``No.' Worth says, ``You know what that means; that means five years if they prove that.'" The witness further testified that that was the extent of the conversation; that the defendants were engaged in further conversation between themselves but he did not hear it. This witness was an employee of the department of public works, division of highways.
As we read appellants' brief, no contention appears to be made that the testimony is insufficient to show the burglarizing of the car in question and the larceny of the cigarettes.
[5] It is further objected that the court erred in giving two instructions to the jury, the first of which reads as follows: "The jury is instructed that in order to constitute the crime of theft, the goods taken must be taken or severed from the possession or custody of the owner or the bailee, and be in the possession of the thief, although it be but for a moment; that they need not be retained in possession of the thief, nor removed from the owner's possession. Any removal, however slight, of the entire article, is sufficient to constitute the crime of theft." This instruction is not correctly worded. The word "possession" following the word "owner's" should have read "premises" or "presence". In this case the cigarettes were not removed from the owner's premises as they lay upon the railroad right of way where they were admittedly thrown by the defendants. Under the testimony which we have stated, and against which no objection is made by the appellants as not being sufficient to show both the burglary and the theft, we think that section 4 1/2 of article VI of the Constitution applies. The jury was not misled. They had heard the testimony *Page 123 as to the cigarettes being thrown from the car in which they were being transported. That established the theft. The mere fact that the cigarettes were not removed from the premises belonging to the railroad company was an unnecessary element in the commission of the crime, and we cannot very readily conceive how the jury understood the instructions as meaning other than that the defendants, in the complete commission of the offense, were not required to take the cigarettes entirely off of the railroad right of way.
[6] It is further contended that the court erred in its instructions as to what constituted larceny in that it omitted the word "feloniously". The whole instructions should be read together, which shows that the court charged the jury that they must be convinced to a moral certainty, and beyond a reasonable doubt, that the defendant Chester Arnest "did, on the 30th day of August, 1932, feloniously steal the personal property of another, as alleged in the information"; and then define "grand" and "petty theft" as given in the statute, which, of course, was neither misleading nor erroneous.
[7] The judgment in this case, however, is erroneous and unwarranted in one particular in so far as it adjudges the defendant Alfred L. Worth with a prior conviction, etc. The information, as we have stated, simply charges the defendant Worth with having been convicted of the crime of petty theft.
Section
Thompson, J., and Pullen, P.J., concurred.
State v. Jensen , 83 Utah 452 ( 1934 )
State v. Barlow , 242 Iowa 714 ( 1951 )
People v. Tennyson , 127 Cal. App. 2d 243 ( 1954 )
In Re Schneider , 23 Cal. 2d 427 ( 1943 )
People v. Ford , 81 Cal. App. 2d 580 ( 1947 )
People v. Nicholson , 34 Cal. App. 2d 327 ( 1939 )