People v. Fallai

KNIGHT, J.

Appellant, having been convicted of robbery in the second degree, has appealed from the judgment of conviction and the order denying his motion for a new trial. One of the several grounds urged for reversal is that the trial court erred in allowing the information to be amended at the commencement of the trial.

Before amendment the information read as follows: “ . . . Humbert Fallai is accused by the District Attorney of the said County of Alameda- ... of the crime of felony, to wit, robbery, in that on or about the 4th day of March, Á. D. 1928, at the said County of Alameda, State of California, he

robbed

John J. Fitzgerald of one gold watch and chain, one revolver, one pair of handcuffs and $14 more or less, lawful money of the United States, and the said Humbert Fallai was then and there armed with a deadly weapon.” (Italics ours.) Appellant did not demur to the information, but at the commencement of the trial and after the district attorney had finished his opening statement to the jury, objected to any evidence being received and asked that the action be dismissed upon the ground that the information did not charge a public offense. The particular objection made was that because of the use of the word “robbed” in the place of the technical language of the code defining the crime of robbery, the information entirely failed to state a public offense. In ruling upon the objection the trial court indicated that in the absence of a demurrer the information was probably legally sufficient, but stated that the word “robbed” was merely the expression of an opinion and that therefore the information should be amended. Whereupon, pursuant to the authority granted by section 1008 of the Penal Code, the information was amended by striking

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out the word “robbed” and inserting in lieu thereof the following: “willfully, unlawfully and feloniously and by means of force and fear, and against the will of one John J. Fitzgerald, did take, steal and carry away from the person and immediate presence of the said John J. Fitzgerald,” the personal property hereinabove described, etc.

Appellant now contends that the amendment was one of substance and not of form, and therefore was violative of appellant’s constitutional rights; and that if said section 1008 be construed as permitting such an amendment it is, to that extent, unconstitutional. Respondent takes the position that prior to the amendment the information was legally sufficient to meet the requirements of the present statute, and that consequently the questions as to the form of the amendment and the constitutionality of the code section permitting the same are immaterial. We are of the opinion that respondent’s position must be sustained. The short form of information authorized by the 1927 amendment to section 951 of the Penal Code is as follows: “(Title of the court). The district attorney of the County of ...... hereby accuses A. B. of a felony (or misdemeanor), to-wit: (giving the name of the crime, as murder, burglary, etc.) in that on or about a certain date (stating it) in the county of......, State of California, he (here insert statement of the act or omission, as for example ‘murdered C. D.’) ”; and in connection therewith section 952 of the said code provides that in charging an offense the information shall be sufficient if it contains in substance a statement that the accused has committed some public offense therein specified, that such statement may be made in ordinary and concise language without any technical averments, and may be in the words of the enactment describing the offense or in any words sufficient to give the accused notice of the offense of which he is charged. The code defines robbery to be “the felonious taking of personal property in the possession of another from his person or immediate presence, and against his will, accompanied by means of force or fear”; and in its relation to the law the word “robbed” is defined by Webster to mean: “To take personal property in the possession of another from his person' or his presence feloniously and against his will by violence or by putting him in fear.” It