People v. Shope

California Court of Appeal Apr 13, 1926 No. Docket No. 1319.Published

Before: York

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Holding. The court held that a trial court may properly permit the amendment of an information prior to trial to correctly state an offense shown by the preliminary examination evidence, provided it does not prejudice the defendant's substantial rights.

Issues

Whether the trial court erred in permitting the district attorney to amend the information prior to trial.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“it was within the power of the court to allow such amendment to be made.”

“Section 1008 of the Penal Code authorizes such order “where it can be done without prejudice to the substantial rights of the defendant.””

“There is nothing in the nature of the amendment, or in any circumstance of the case, that would suggest any abuse of discretion by the court in its exercise of the power thus conferred.”

YORK, J.

The defendant was accused by information, filed by the district attorney of Ventura County, of the crime of violation of section 2'88 of the Penal Code, entitled crimes against children, a feldny, and from the judgment of conviction defendant appeals.

The sole point raised worthy of consideration by this court is whether or not the trial court erred in permitting the district attorney to amend the information prior to the trial. The amendment was one made to make the information conform to the decision in the case of

People

Grinnel,

9 Cal. App. 238 [98 Pac. 681], and was amended before

[428]

trial to charge a public offense in compliance with that decision, and at the time of trial the information did charge a single, definite public offense. The amendment placed upon the charged offense a definite limitation by adding the words “the said act not then and there being an act constituting any crime provided for in part I of the Penal Code.” According to the decision in

People

Grinnel, supra,

the information without this amendment would have failed to describe a public offense under said section 288. (See, also,

People

Camp,

42 Cal. App. 411 [183 Pac. 845].)

Prior to the amendment the information as filed, although defective as above stated, was nevertheless an information attempting to charge the commission of a crime. The amendment completed the charge. As there is nothing to the contrary in the record it will be assumed, in support of the order allowing the amendment, that the information as amended correctly states an offense shown by the evidence taken at the preliminary examination, and for which the defendant was committed. This being so, it was within the power of the court to allow such amendment to be made. Section 1008 of the Penal Code authorizes such order “where it can be done without prejudice to the substantial rights of the defendant.” The only limitation placed thereon by the statute is that an information cannot be amended “so as to charge an offense not shown by the evidence taken at the preliminary examination.” Discussing said section 1008, the supreme court in

People v. Shope

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YORK, J.

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