People v. Rippe

LENNON, P. J.

The information originally filed against the defendant in this case attempted to charge him with the crime of felony, viz., obtaining money by false pretenses. The charging part of the information in substance alleged that the defendant willfully and knowingly, by certain false and fraudulent representations, induced certain parties to sign a promissory note, payable to the Farmers’ National Bank of Fresno, in the sum of $250, and that they were thereby “defrauded, damaged, and prejudiced.” It will be noted that the information did not allege, nor attempt to allege, that the note in question had ever been delivered to the payee. No demurrer, however, was interposed to the information, and upon his arraignment the defendant pleaded “not guilty.” When the case came on for trial, and before the impanelment of the jury, the district attorney called the attention of the trial court to the fact that the information failed to allege that the defendant had actually obtained possession of the note which was the subject matter of the alleged false pretenses, and thereupon asked leave to file an amended information, which would cure the obvious defect in the original information, by an additional allegation to the effect that the note in question when signed was delivered to the defendant, and by him in turn delivered to the payee therein named. The application to thus amend was resisted upon the ground that the 'proposed amendment would operate to charge the defendant with an offense different from that charged in the original information, and not shown by the evidence taken at the preliminary examination, and therefore in contravention of the provisions of section 1008 of the Penal Code. Upon the overruling of this objection the amended information was filed, and upon his arraignment the defendant again pleaded “not guilty,” with the privilege of later withdrawing his plea and interposing a demurrer if his counsel deemed such a course advisable. The case was then continued for trial to a day and date satisfactory to counsel for the defend

[516]

ant, and ultimately came to trial with no demurrer interposed, and the plea of “not guilty” still standing.

Upon his trial the defendant was convicted, and he appeals from the judgment and from an order denying a motion for a new trial.

That the evidence is sufficient to support the judgment and verdict is not disputed, and the only points urged for a reversal are that the court erred in permitting the amended information to be filed and in refusing a certain requested instruction.