People v. King

LANGDON, P. J.

This is an appeal from a judgment of conviction of the crime of rape and from the order of the trial court denying a new trial. The offense was committed against the stepdaughter of defendant, a girl of the age of fifteen years.

[1]

Defendant’s first contention is that the information is insufficient. The allegation of which complaint is made is as follows: “The said Hayden King on or about the 1st day of May, A. D. nineteen hundred and twenty-one at the said city and county of San Francisco, State of California, then and there willfully, unlawfully and feloniously

have and accomplish

an act of sexual intercourse with and upon one ...” The omission of the word “did” before the words “have and accomplish” is asserted to be fatal to the information. At the trial, the defendant waived the reading of the information, a copy of same was given him and, thereupon, he entered a plea of “not guilty.” No demurrer, either general or special, was interposed, nor was there .any motion in arrest of judgment, and the first objection to the sufficiency of the information is made upon appeal. The jury was carefully instructed as to the statutory definition of rape and the law governing the commission of the same, and in the light of such instructions brought in a verdict finding the defendant “guilty of the crime of felony, to wit, rape, as charged in the information.”

Under all these facts, we think the omission of this word

[486]

from the information does not warrant a reversal of the judgment. In the first place, the error was clearly a clerical one and could not have misled the defendant in any way.

[2]

An error which does not prevent a defendant of common understanding from being fully informed as to the charge against him, and enabled to prepare for his defense is clearly not prejudicial. (Bishop’s New Criminal Procedure, secs. 356, 357.) Furthermore, it is apparent that the information would have been beyond criticism had the verbs “have” and “accomplish” been used in the past tense. In other words, had the information read: “the said Hayden King had and accomplished an act of sexual intercourse . . . ” We are confronted, then, with a mere grammatical error, the use of the present tense of a verb instead of the past tense. Such an error will not vitiate the information in a case like the present where the meaning is apparent and where the defendant could not have been and was not misled. (Bishop’s New Criminal Procedure, see. 354.)