People v. Cole

ELLISON, J., pro tem.

The defendant was convicted of placing dynamite in a certain building with intent to injure, intimidate, and terrify human beings. He brings this appeal from the judgment and from an order denying his motion for a new trial. He contends that the information does not state a public offense and that the court erred in overruling his demurrer thereto.

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The charging part of the information reads as follows: “The said Harry T. Cole, on the 10th day of June, A. D. nineteen hundred and fourteen, at and in the county of Humboldt and state of California, did then and there willfully, unlawfully and maliciously put, place and deposit giant powder in that certain building known as Harry T. Cole’s cabin or dwelling-house near Weitchpee, county of Humboldt, state of California, with the intent to injure, intimidate and terrify human beings.”

The offense charged against the defendant is defined in section 601 of the Penal Code as follows:

“Any person who maliciously deposits or explodes, or who attempts to explode, at, in, under, or near any building, vessel, boat, railroad, tram-road or cable-road, or any train, or car, or any depot, stable, car-house, theater, schoolhouse, church, dwelling-house, or other place where human beings usually inhabit, assemble, frequent, or pass and repass, any dynamite, nitroglycerine, vigorite, giant or hércules powder, gunpowder, or'other chemical compound or explosive, with the intent to injure or destroy such building, vessel, boat, or other structure, or with the intent to injure, intimidate, or terrify any human being, or by means of which any human being is injured or endangered, is guilty of a felony, and punishable by imprisonment in the state prison not less than one year.” Defendant makes the claim that the information is fatally defective in that: 1. It fails to state that the cabin or dwelling-house was “a place where human beings usually inhabit, assemble, pass or repass ’ ’; and, 2. It does not state the names of the “human beings against whom the defendant directed his intent to injure, intimidate or terrify.”

The position is taken that section 601 of the Penal Code, after mentioning “building, vessels, railroads,” etc., immediately follows with the words “or other place where human beings usually inhabit, assemble, pass or repass,” and that these last quoted words qualify the nouns preceding them, viz.: “building, vessel, railroad . . . theater, church, dwelling-house, ” etc., and that the information, to state a public offense, should have alleged that the building known as “Harry T. Cole’s cabin or dwelling-house” “was a place where human beings usually inhabit, assemble, frequent, pass or repass. ”