People v. Donaldson

KERRIGAN, J.

Defendant was charged by information filed by the district attorney of the city and county of San Francisco with the crime of obtaining money by false pretenses. He was tried, convicted, and sentenced to four years’ imprisonment in the state prison. He now appeals from said judgment and from the order denying his motion for a new trial.

From the record it appears that one Marguerite H. Nesbitt, the prosecutrix, conducted a small grocery store in the outskirts of San Francisco, and that the defendant, having heard that she had recently won twenty thousand dollars in a lottery, conceived a plan to get this money from her. Accordingly, after having by a ruse made her acquaintance, he represented to her that he was the owner of a very valuable mine out of which he had made within the past six months the sum of one hundred thousand dollars; that if she cared to do so he thought he could arrange to let her invest twenty thousand dollars, which amount was needed to complete certain necessary improvements on the mining property, and

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that if she should do so she would within a short time thereby gain at least one hundred thousand dollars. She was inexperienced, gullible, and guileless; he was persuasive, tactful— and unscrupulous. She parted with her money. The mine was worthless. This prosecution resulted.

Taking up the main point relied upon by the defendant for a reversal of the judgment, we find that during the trial, in opder to meet an objection of the defendant and out of an excess of caution, the court made an order permitting the district attorney to make a further amendment to the information (one having already been made), so as to include within its averments certain specific pretenses not set forth therein. The defendant now assigns as error the order allowing this amendment, claiming that it was one of substance and not within the terms of section 1008 of the Penal Code. The asserted defect in the proceedings, of course, does not appear upon the face of the information, and therefore is not raised by the demurrer; and as the defendant did not object to the admission of the evidence introduced under this amendment, he cannot now be heard to complain unless the motion to strike the information from the record, which was filed by the defendant, may on the ground set forth therein be regarded as broad enough to raise the point now made. Assuming, without deciding, that this is so, still we think the contention untenable, for in our view the evidence was admissible under the information before the amendment complained of was made; and if this be true, the amendment was unnecessary, and no prejudice to the rights of the defendant 'resulted from the admission of this evidence. "We think that where, as in the present ease, the main inducing cause of the parting with the money or property is stated in the information, it is sufficient, and that evidence amplifying such main inducing cause is admissible. In the case at bar it appears from the averments of the information that the chief misrepresentations made by the defendant were as to the immense value of the mining property claimed to be owned by him. and as to the “vast quantity of pay-ore” on the claim all ready to be worked. Under these averments the evidence introduced by the prosecution of representations made by the defendant as to the value in money of such ore, as to the acreage of the claim, the improvements thereon, and the number of men there employed, was, we think, clearly admissible.