People v. Hirschler

STURTEVANT, J.

The district attorney filed an information against Paul Hirschler and Edward Haight which purported to plead against both defendants the charge of robbing A. F. Bouvier and George Deline. The information alleged two counts and further alleged that both acts were part of one transaction. The defendants pleaded not guilty and a trial was had before the trial court sitting with a jury. The jury returned four separate verdicts, finding each defendant guilty on each count. The defendants each made a .motion for a new trial. The motions were denied. The defendant Hirschler has appealed from the order and judgment and has brought up a typewritten record.

The charging part of each count in the information followed the same form. That in the first count alleged that “they robbed Alfred F. Bouvier of one purse containing $44.80, more or less, lawful money’ of the United States, one California Diamond Jubilee 1925 one-half dollar and one United States 1872 half dime.” The alleged offense was committed on the eleventh day of September, 1928, and the information was filed October 16, 1928. The defendant contends (1) that the elements of force and/or fear are lacking and no substitution for them is anywhere attempted in the pleading; (2) that an allegation of the use of dangerous and deadly weapon was omitted, and (3) that the information is entirely uncertain, as it does not alleged that the taking was from the possession or immediate presence of the victims. No demurrer was interposed. The attorney-general cites section 1012 of the Penal Code and contends that the objections presented come too late. The defendant does not claim that in so far as his objections rest on uncertainty that the same can be presented at this time. However, he

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does claim that the allegations are insufficient except as a statement of larceny. That exception in itself is a public offense, therefore it cannót be said that the information wholly failed to state a public offense. That being so, it follows that no one of the "contentions is available to the defendant at this time.

In what we have just stated we have considered the rules of pleading in criminal eases as they existed prior to the amendments of 1927; but the statutes adopted in 1927 enacted important amendments regarding the rules of pleading. Section 951 of the Penal Code, as amended (Stats. 1927, p. 1043), is as follows: “ . . . The people of the State of California against A. B. In the superior court of the State of California in and for the county of . . . 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 of California, he (here insert statement of act or omission, as for example, 'murdered C. D.’).” The enactment of that amendment presents another reason why no one of the objections presented by this defendant is tenable.