People v. Schoeller

WILSON, J.

Defendant was charged by indictment with 56 counts of violation of section 424 of the Penal Code. He entered a plea of not guilty to all counts and when the case was called for trial moved to dismiss the indictment upon the ground it did not state a public offense. This motion was denied. After trial by the court, a jury trial having been waived, defendant was found guilty on all counts. His motion for new trial was denied, probation was denied and he was sentenced to the state prison. He has appealed from the order denying a new trial and from the judgment and sentence.

The sole question raised by this appeal is whether the indictment states a public offense.

Respondent asserts that not having demurred before plea was entered and no motion to set aside the indictment or motion in arrest of judgment having been made, defendant has waived his objections to the form of the indictment. All objections which appear on the face of an indictment are waived by defendant’s failure to demur before plea except want of jurisdiction of the court over the subject of the indictment or failure to state facts constituting a public offense. Such may be taken advantage of at any time in the course of the proceedings

(People

v.

Kinsley,

118 Cal.App. 593, 596 [5 P.2d 938] ; Pen. Code, § 1012) and may be raised for the first time on appeal from the judgment.

■ The pertinent portions of section 424 of the Penal Code are as follows: “Each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disburse

[63]

ment of public moneys who either:— ... 3. Knowingly keeps any false account, or makes any false entry or erasure in any account of or relating to the

same;

... Is punishable by imprisonment in the state prison for not less than one nor more than ten years, and is disqualified from holding any office in this state.”