People v. Burke

KNIGHT, J.

The defendant was charged by information containing four counts with having violated sections 475 and 480 of the Penal Code and with two prior convictions of felony. He admitted the prior convictions and was found guilty of the crimes charged in the first and second counts; whereupon, and on April 20, 1931, the trial court imposed sentence on each conviction and directed that the two sentences run consecutively. No appeal was taken, but in January, 1937, nearly six years after defendant had been committed to the state prison in execution of said sentences, he filed and presented a motion in the superior court to set aside the judgment of conviction and sentence on the first count. The

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motion was denied and he has appealed from the order made in that behalf.

The motion was based upon the ground that the facts alleged in the first count were insufficient to constitute the crime declared by said section 475 of the Penal Code, or any other crime, and that therefore, as to the first count, the information on its face and all proceedings founded thereon, including the judgment of conviction and sentence, were and are a nullity.

The charging part of count one was as follows: ‘ ‘ The District Attorney of the County of Contra Costa hereby accuses James Fred Burke and Helen Burke, his wife, of the crime of felony, to wit: Violation of Section 475 of the Penal Code of the state of California. First Count: In that on or about the 21st day of February A. D. 1931, in the County of Contra Costa, State of California, they, the said James Fred Burke and Helen Burke, his wife, did then and there unlawfully, wilfully and feloniously have and keep in their possession blank and unfinished bank bills made in the form of a bill for the payment of money to be issued by National City Bank of New York, a banking corporation, with the intention to fill up and complete such blank or to permit or cause, or procure the same to be filled up and completed in order to utter, or pass the same, or to permit, or to cause, or procure the same, to be uttered, or passed to defraud persons or banking corporations. ...”

In so alleging the facts the district attorney followed substantially the language of said section 475 except that he omitted the word “made” as contained in said section, immediately preceding the phrase “to be issued”, and defendant contends therefore that the absence of said word rendered the first count void. The argument advanced in support of the contention is that one of the elements of the offense declared by said section 475 is that the blank bills the accused is charged with having unlawfully possessed must be in the form of a “finished and completed” bill to be issued by a bank (citing