[564]BRAY, J. Defendant was tried by a jury and found guilty of the crime of forgery. After denial of his motion for a new trial, he appealed from the judgment. At the trial and here defendant acted in propria persona.
He makes five contentions: (1) The information became void. (2) The court refused to let the codefendant Gross plead guilty. (3) He was not brought to trial within the time prescribed by law. (4) Errors in introduction of evidence. (5) The corpus delicti was not proved.
1. Information Was Not Void
In the original information defendant was charged jointly with one Gross with the crime of forgery. On October 20, 1947, both defendants pleaded not guilty thereto. On December 4, both defendants were in court, represented by Attorney Klein. The clerk proceeded to arraign them on an amended information which apparently had been filed previously. (The record does not show when.) This information was the same as the original one except that a prior conviction against Brower alone had been added. To this amended information Gross pleaded guilty, Brower not guilty, admitting the prior conviction. The district attorney then asked the court to refuse to accept Gross’s plea of guilty. In the discussion which ensued the court set aside the amended information on the ground that it was filed after plea to the original information, without leave of court. While the court used the language “set the whole thing aside”, it is obvious from the discussion and the proceedings thereafter, including the fact that Brower at no time during the trial contended that the original information had been set aside, that the court was referring to the amended information and not to the original information. Defendant now contends that the amended information superseded the original information and when the court set it aside the original information was set aside also, and there was left no information upon which to try him. This contention is not well founded. Section 1008 of the Penal Code allows amendment of an information any time before plea without leave of court, but requires such leave to be obtained for an amendment after plea. The filing of the amended information without leave of court in nowise affected the original information, nor did its setting aside. This is elementary. Until the court had granted permission that it be filed, the amended information had no place in the record and was not legally filed. In People v. Gates, 214 [565]Cal. 175 [4 P.2d 541], an information charging forgery was properly amended pursuant to section 969a of the Penal Code to set up a prior conviction. “This amendment was later withdrawn and the original information remained. The defendant suffered no prejudicial error through such action and the original information did not lose its efficacy. ’ ’ This case, likewise, answers defendant’s contention that once the court learned that defendant had a prior conviction, it had no right to refuse to allow the amendment. This contention is based upon the language of section 969a: “Whenever it shall be discovered that a pending . . . information does not charge all prior” convictions, said “information shall be forthwith amended to charge” such convictions. See, also, People v. Grimes, 94 Cal.App. 238 [270 P. 1000], where the court struck out of the information two of the three charges of prior conviction.
2. The Codefendant’s Plea
As stated, Gross pleaded not guilty to the original information. He pleaded guilty to the amended information before the court set it aside. When the court set aside the amended information, the district attorney announced that he would file an amended information later. Apparently this was not done, although at the end of the presentation of evidence by the prosecution, the following occurred: “Mr. Mullins [for the prosecution] : That is all. That is the People’s case except on a motion for the amended information, which is under submission. The Court: That will remain under submission.” The court did not act further on this matter and the judgment made no mention of the prior conviction. The record shows that on more than one occasion before trial, Gross asked that he be permitted to change his plea from not guilty to guilty. To this the district attorney objected and the court refused to allow the change. Brower contends that thereby he was forced to trial with an admittedly guilty .man and that the jury was influenced by evidence admissible against Gross alone, which could not have been before the jury had Brower been tried alone. Thus, Gross’s confession, which was not admissible against Brower, was admitted. Although the court specifically instructed several times that this confession was not to be used against Brower, the district attorney in his argument read it to the jury, emphasizing the parts implicating Brower. The court erred in forcing Gross to stand trial where the only purpose [566]of so doing was to get before the jury evidence inadmissible against Brower. This practice is highly reprehensible. However, in this case we are forced to the conclusion that under section 4% of article VI of the Constitution, the error was not prejudicial and did not result in a miscarriage of' justice. Disregarding the confession entirely, the case is very strong against Brower. The facts will be discussed later on. They leave no reasonable doubt of defendant’s guilt.
When Brower called Gross to the stand to testify, he stood on his constitutional rights and refused to do so. It is doubtful if this can be blamed on the prosecution. However, were there any reasonable doubt of Brower’s guilt, the fact that Gross was compelled to stand trial against his own wish, so that his confession could be indirectly used against Brower, and that Gross then refused to give Brower an opportunity to examine him concerning the matters mentioned in the confession, would be important. But in view of the facts of the case, no miscarriage of justice resulted.
3. Delay in Bringing Defendant to Trial
Approximately four months and eleven days elapsed from the filing of the information to the date of trial. A portion of this time defendant was confined in jail serving a 60-day term. During all the time up to the day before the case went to trial, defendant was represented by an attorney who also represented the codefendant. The record shows that while on one or two occasions the attorney complained of the delay in setting the case, he either asked for the continuances, acquiesced in, or consented to them. The information was filed on October 14. Defendants were arraigned October 17. At defendant’s request the matter was continued to October 20, to plead. October 20 defendants pleaded and at defense attorney’s request the case was continued to October 27 to be set. The record fails to show what, if anything, happened between October 20 and November 20. On the latter date, when the case was called, the defense attorney stated that he had consulted with the district attorney and offered to plead both defendants guilty provided Brower was sentenced to the county jail for six months instead of being given a prison sentence. Some discussion ensued between counsel on this subject, the district attorney refusing to recommend the jail sentence. The district attorney stated that Gross was charged with one Brick on another charge and he desired to try that case, to be followed by the case against Gross and [567]Brower. The district attorney asked that this case be continued to December 4. Defense counsel then stated; “December the 4th is rather a long time—all right.” The case was continued to that date. On December 4, defense counsel stated that the district attorney had elected to try the Gross and Brick ease that day, to be followed by this case. The proceedings before mentioned concerning the amended information then took place. After it was set aside by the court, the district attorney stated that he would file an amended information and asked that the matter be continued to December 9. After some discussion concerning bail the court continued the matter to December 9. Defendant made no objection. On that date, the court stated that the district attorney was asking that the matter be continued to December 12 and then asked defense counsel if that was agreeable. The latter then said: “Better continue it until the 15th.” This the court did. On the 15th when the case was called, defense counsel was not present. After waiting some time for him to appear, the court continued the matter until the next morning. On December 16, defense counsel announced that defendants were ready for trial. The district attorney announced that he was not. A discussion then followed as to whether the district attorney had ever filed the amended information which on December 4 he stated he would file. The district attorney then asked that the trial be set for December 29. Defense counsel said he was “not trying any cases on the 29th.” The court then asked what date he would suggest. Counsel then said: “What about the 22nd?” and further stated: “I was relying on the understanding that we were going to dispose of this matter,” to which the district attorney replied: “You were relying upon something upon which you had no basis to rely.” Defense counsel then asked what day the probation officer’s report would be received. (This referred to the conviction of Gross in the Gross and Brick case.) On being told that the date was January 9 he said: “Put this on for the 12th of January. That’s the following Monday.” The case was continued to January 12. On that date the court transferred the case to another department. Defense counsel called attention to the fact that it was understood the case would be tried that day and that Brower had been in jail for a long time. The court stated that it was engaged in impaneling a jury in a murder case started the week before. Again there was a discussion concerning bail and the case was transferred to department 20, without
Facts
Before discussing the next two points, it is advisable to set forth the facts established at the trial. The charges against Gross and Brower were the aftermath of a burglary at Longview, Washington. The facts concerning that crime were not contradicted. Brower admittedly had no part in the commission of that crime, as .he was actually in the San Francisco County Jail at the time. On a night in June, 1947, the safe was removed from the Longview Western Union office. It was later found at the city dump with a hole burned in it. The inventory the night before had included unused American Express money orders AQ-8188400 to AQ-8188499 inclusive. (Hereafter these money orders will be referred to [570]by their last three respective numbers only.) To be valid, these money orders must be signed by an authorized subagent of Western Union on a place left on each order for that purpose. Money orders 487, 486 and 483 were definitely identified as having been in the safe the night it was removed. In addition to the numbers they were identified by the Long-view, Washington, address stamped on them. When the safe was found, the money orders were gone. Some time after the burglary, the above three orders were cashed in San Francisco. The name “William Cole” was filled in as sub-agent. The company had no such subagent. Bach money order of this type has a remitter’s receipt and subagent’s stub. When issued in the regular manner, the subagent retains the stub and the buyer of the order receives the receipt. On August 13th, defendant was taken by two police inspectors to his room in San Francisco. Defendant admitted them to the room. In his presence, they seized certain torn pieces of paper which they found in a wastebasket. Piecing them together they were found to be the remitter’s receipts and subagent’s stubs of orders 487, 486 and 483.
Order 483 was cashed at the Zanzibar Tavern. The owner identified Brower as the person who presented and cashed it, saying that he was cashing it for a friend. Order 486 was cashed at a liquor store by Gross. The clerk who cashed it testified Gross came in alone and that he had never seen Brower before the trial. Order 487 (the one set forth in the information) was cashed at a night club by Gross but Brower was not present. The money orders were signed either “Ida Stearns” or “Davis Stearns” as payee. These money orders were of the type made payable to a named payee and which the payee does not sign on purchase, but must sign when they are cashed. The handwriting expert of the San Francisco Police Department testified that after comparing certain exemplars written and signed by Brower with the handwriting and signatures on the orders, he was convinced that the filled in matter and the signatures were in Brower’s handwriting and had been written by him. A police inspector testified that when he asked Brower -to compare his own exemplars with the signatures on the money orders, Brower said, “That finishes me. ... I will cop a plea to petty theft if you will give me a county jail sentence”; also, that when confronted with a statement given by Gross incriminating Brower, the latter stated to Gross, “You put the noose on my neck, Joe. Why did you give that statement ? ’ ’
[571]Defendant did not deny the admissions claimed to have been made to the police inspector, did not take the stand, nor did he offer any evidence even purporting to contradict the fact that the money orders were stolen, the circumstances of their fraudulent cashing, the discovery of the torn stubs in Brower’s room, nor the testimony of the handwriting expert that the date and the “Stearns” signatures were written by Brower. The latter, in cross-examining the expert, tried to suggest that someone else, in filling out the money orders, was imitating Brower’s handwriting. Thus, it appears from the record, without considering, and entirely disregarding, the Gross confession, that a conclusive case of guilt was made out against Brower.
4. No Error in Admission op Evidence
Defendant contends that the court erred in admitting testimony that Brower cashed order 483, inasmuch as the order he was charged with forging was 487, cashed by Gross. Defendant contends that this was evidence of an independent and unrelated crime. The evidence was admitted prior to proof that Brower had any connection with order 487. The evidence was admissible, as it, together with the other evidence concerning the other two orders which were cashed the same day, shows a general pattern, scheme or plan to forge orders stolen in blank from the Western Union office. Admissibility of such evidence is well established. (People v. Selk, 46 Cal.App.2d 140 [115 P.2d 607] ; People v. Cassandras, 83 Cal.App.2d 272 [188 P.2d 546]. See, also, discussion in 8 Cal.Jur. 69.)
In People v. Albertson, 23 Cal.2d 550 [145 P.2d 7], in discussing the admissibility of evidence of other crimes, the court says (p. 578): “Hence: (a) Ground must first be laid implicating the accused in the charge under trial, and unless sufficient evidence of this has been, in the opinion of the trial judge, first adduced, all evidence of other offenses must be excluded; (b) the collateral offense cannot be put in evidence without proof that the accused was concerned in its commission ...” Although in the order of proof in our case, the court admitted this character of evidence before it had received evidence complying with this rule, such evidence was later received. Where sufficient evidence to meet the requirements above set forth actually appears in the case, the fact that it came later is not important.
[5725]. Corpus Delicti
Defendant contends that the corpus delicti was not established against him. The rule is that the prosecution must establish that a crime has been committed, but the identity of the person who committed it is not a part of the corpus delicti. (People v. Garcia, 101 Cal.App. 213 [281 P. 508].) Defendant maintains that the order (487) described in the information was not admitted in evidence, basing his contention on some confusion in the use of the terms “checks” and “money orders.” Both the district attorney and the witnesses used these terms interchangeably. In addition to the money order blanks stolen at Longview, there were also some blank traveler’s checks taken at the same time. The difference between a “check” and a “money order” is that on the latter the payee’s name is not signed until the time of the cashing, while on the “check” the purchaser signs at the time of purchase and then when cashing, signs again as a means of identification. While the orders 487, 486 and 483 were frequently referred to as “checks,” the record clearly indicates that the witnesses and counsel were not referring to the stolen “checks” but to these particular orders. When these three were marked for identification, they were referred to as “checks,” but when they were actually introduced into evidence they were properly called. Defendant is in error in contending that they were not admitted in evidence. The record clearly shows that all three of them were.
The judgment is affirmed.
Ward, J., concurred.