People v. Moranda

ADAMS, P. J.

In an information filed in Humboldt County defendant was charged with burglary committed on or about December 16, 1947, in that he did “wilfully, unlawfully, feloniously and burglariously enter those certain premises and building known as Shafer’s Hardware Store, located at 2750 ‘E’ Street, in the City of Eureka, County of Humboldt, State of California, and occupied by A. F. Shafer and Frank Kitchen, with the felonious intent then and there to commit the crime of theft therein.” A trial resulted in defendant’s conviction, and he has appealed, contending first that there was a fatal variance between the pleading and the proof of the offense; second, that he was unduly restricted in the questioning of witnesses. .

Appellant’s claim of a fatal variance is based upon the fact that while the information charged the burglary to have been committed “on or about” December 16th, the evidence shows it to have been committed on December 18th. There is no merit in this contention. It is well established that such a variance is immaterial unless time is of the essence of the offense; and that where it clearly appears, as it does in this case, that but a single offense is charged to have been committed anterior to the filing of the information, and within the period designated by the applicable statute of limitations, the variance is of no significance. Section 955 of the Penal Code of California provides that the precise time at which an offense was committed need not be stated in an information, but it may be alleged to have been committed at any time before the filing thereof, except where the time is a material ingredient. And it is set forth in section 960 of that code that no information is insufficient, nor can a judgment be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of defendant upon the merits. Also, section 1404 provides that neither a departure from the form or mode prescribed by that code in respect to any pleading, nor any error therein, renders it invalid unless it has actually prejudiced the defendant or tended to his prejudice in respect to a substantial right.

In the early case of

People

v.

Rice

(1887), 73 Cal. 220, 221 [14 P. 851], where the evidence showed that the offense was

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