FINCH, P. J.
In their petition for a rehearing the appellants, referring to the last sentence of section 952 of the Penal Code (Stats. 1927, p. 1043), quoted in the original opinion, say: "The enactment, providing that the allegation of `unlawfully took' shall be sufficient to charge all the acts constituting theft, . . . not only fails to allege the elements of the crime of theft, but alleges an act which might and ordinarily does not constitute a crime at all." Section 952, however, must be read in connection with section 951, both enacted at the same session of the legislature. Section 951 provides:
“An indictment or information may be in substantially the following form: . . . The grand jury (or 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 the -day of-, 19—, in the county of-, State
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of California he (here insert statement of act or omission, as for example, ‘murdered C. D.’) ”
The information in this case, the charging part of which is set out in the original opinion, is in substantial compliance with the prescribed form, and it is clear that “grand theft” always constitutes a crime. In an early case it was said: “Our criminal code was designed to work the same change in pleading and practice in criminal actions which is wrought by the Civil Code in civil actions. Both are fruits of the same progressive spirit which, in modern times, has endeavored at least to do away with the mere forms and technicalities of the common law which were productive of no good, and frequently brought the administration of justice into contempt by defeating its ends. Under the pretense of informing the defendant of the nature of the charge against which he was called upon to defend, it was necessary, at the ancient common law, to describe the means by which the homicide was committed, and the nature and extent of the wound and its precise locality; from which it necessarily followed that a trifling variance between the proof and the allegation frequently defeated a conviction, no matter how manifest the guilt of the defendant. It was a long time before legislators and judges discovered that this rule had nothing but the most flimsy pretext to support it. If the defendant is guilty, he stands in need of no information to be derived from a perusal of the indictment, as to the means used by him in committing the act or the manner in which it was done, for as to both his own knowledge is quite as reliable as any statements contained in the indictment. If he is not guilty, the information could not aid in the preparation of his defense. ’ ’
(People
v.
King,
27 Cal. 507, 510 [87 Am. Dec. 95;
People
v.
Cronin,
34 Cal. 191, 200;
People
v.
Fowler,
178 Cal. 657, 661 [174 Pac. 892].) From purely theoretical considerations it might be exceedingly important for the indictment or information to set forth the manner in which the alleged murder was committed and the means by which it was accomplished, thereby informing the defendant of the particular facts against which he will be required to defend at the trial. Theoretically, a defendant may learn during the progress of the trial, for the first time, that the prosecution relies for a conviction upon proof that the alleged murder was committed by means of
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poisoned candy sent from a distant state, by some subtle process or means at or near the scene of the crime, or through an accomplice, but experience has demonstrated that, from a practical standpoint, the rule requiring an indictment or information to set forth such particulars has “nothing but the most flimsy pretext to support it,” and it is now “the settled law of this state that it is sufficient to charge the offense of murder in the language of the statute defining it, whatever the circumstances of the particular case.”
(People
v.
Witt,
170 Cal. 104, 107 [148 Pac. 928].) There may be technical objections to the short form of indictment or information under discussion, but when a defendant charged with grand theft as defined by section 484, has been furnished a copy of all the testimony taken at the preliminary examination or given before the grand jury, a rule requiring the indictment or information to state more than is required by sections 951 and 952 would have “nothing but the most flimsy pretext to support it.” The extreme technicalities of the old common law are no longer followed in the English practice. The English Larceny Act, 1916, provides for a short form of indictment in charging simple larceny and more particular averments in a charge of obtaining property by false pretenses. (Archbold’s Criminal Pleading, Evidence & Practice, 25th ed., 491, 669.) “The distinction between larceny and obtaining by false pretenses is now little more than academic, because of the provisions of 6 & 7 Geo. 5, C. 50, s. 44, sub. ss. 3, 4.” (Id. 507.) “On the trial of an indictment for stealing the jury may . . . find the defendant guilty of embezzlement or of fraudulent application or disposition, as the case may be. . . . If on the trial of any indictment for stealing it is proved that the defendant took any chattel, money, or valuable security in question in any such manner as would amount in law to obtaining it by false pretenses with intent to defraud, the jury may acquit the defendant of stealing and find him guilty of obtaining the chattel, money, or valuable security by false pretenses, and thereupon he shall be liable to be punished accordingly.” (Id. 488.)
■ Appellants are in error in saying in the petition that the opinion filed herein “declares that the case below was erroneously tried upon the theory that a conspiracy existed between the defendants,” the statement in the opinion being
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that certain proposed instructions are framed on the erroneous theory therein stated. No further discussion of the matter appears to be necessary.
It is strenuously urged in the petition that the opinion incorrectly states that a remark of the trial court of which appellants complain referred to the September report of the defendant Christman. In support of their present contention, counsel cite pages 157 and 158 of the reporter’s transcript, containing evidence relating to the August report. No statement of the trial court appears on either of those pages which has any semblance of an adverse comment, and on page 159 it clearly appears that the August report was admitted in evidence without objection. It is sufficient to call attention to pages 34 and 35 of appellants’ opening brief, where counsel correctly set forth the court’s statement of which they complain and the evidence in relation to the report referred to by the court, citing page 201 of the transcript. A perusal of that part of their brief or that page of the transcript will remove all possible doubt as to the report to which the court referred in the statement in question.
Appellants again complain of certain statements made by- the district attorney in his argument to the jury and the comment of the court in relation thereto, appearing on page 358 of the transcript, as follows:
“If these defendants are not made to suffer the penalty of their crimes, what is the use of you and me teaching our sons and daughters it is better to be honest, if one guilty of such crimes are not made to pay the penalty of the law? The people of this community are awaiting with interest your verdict in this matter. Mr. Manwell: We object to that, intimating that the public are interested in the conviction of these men. Mr. Norby: There is your public. The Court: The People of the State of California are always interested in the conviction of every man if he is guilty. Mr. Manwell: But we object to his making that remark in the manner in which he made it. The Court: The objection is overruled.”
Neither the remark of the court nor the statements of the district attorney were assigned as error, nor was the court requested to instruct the jury to disregard them. It does not appear that the rights of the defendants were prejudiced
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by what was stated by either the district attorney or the court.
Counsel again urge that a new trial should have been granted on the ground of the alleged bias of the juror Viola M. Downing. It is a sufficient answer to cite
People
v.
Emmons,
7 Cal. App. 685, 700 [95 Pac. 1032].
The learned trial judge was scrupulously fair and impartial in the trial of the ‘case and there is nothing in the record to indicate a miscarriage of justice.
The petition for a rehearing is denied.
Hart, J., and Plummer, J., concurred.
A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 22, 1928.
All the Justices present concurred.