People v. Clawson

NOUESE, J.

— The defendant was tried before a jury on an information charging rape. From the judgment following the verdict of guilty and from the order denying his motion for a new trial he has appealed on a typewritten record. The grounds of appeal are that the information was improperly amended during the course of the trial and that the defendant’s motion for a continuance to enable him to plead to the amended information was improperly denied.

In the original information the district attorney charged the defendant “of the crime of rape committed as follows: . . . the said Baymond W. Clawson . . . did . . . wilfully, unlawfully, feloniously ravish and carnally know . . . without the consent and against the will of said-.” During the course of the trial, after the prosecution had rested and the cross-examination of the defendant was about completed, the court. granted the state leave to add the words “and with force and violence” after the word “feloniously,” and also the allegation that the prosecutrix resisted and her resistance was overcome by force and violence on the part of the defendant. Objection was made to this amendment by the defendant and when the amendment was allowed the defendant asked that he be arraigned on the amended information and that he be granted a continuance

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to enable him to plead thereto. The objection was overruled upon the ground that the entire case had been heard upon the theory that force and violence was properly pleaded; that the amendment was made merely to conform to the proof; and that the facts proved disclosed that the defendant was not prejudiced by the amendment.

Appellant premises his attack on the judgment upon the claim that the original information failed to charge any public offense and that the court, therefore, had no jurisdiction of either the person or the subject matter. With this we cannot agree. It charged the commission of the crime of rape. It attempted to plead some of the facts which are made elements of that crime by section 261 of the Penal Code and in this respect, it is conceded, the pleading was faulty. If the question had been raised by special demurrer to the information there can be no doubt that an amendment would have been properly allowed in the form here made. Here the whole cause was tried on the theory that the information properly pleaded force and violence on the part of the appellant and resistance on the part of the prosecutrix. All the evidence tending to prove these issues was received without objection from the appellant and he had been given free rein in the presentation of his defense — that the act was committed with the consent of the prosecutrix and without force or resistance. Section 1008 of the Penal Code permits an amendment to be made to an information after the defendant has pleaded “in the discretion of the court where it can be done without prejudice to the substantial rights of the defendant.” This section is in accord with section 4% of article VI of the constitution and with the rule of the later decisions that mere technical errors in either pleading or procedure which do not in any way affect the substantial rights of the parties are not to be employed to defeat justice, and it would seem to be the clear purpose of the section to permit an amendment of this character to conform to the proof when that can be done without prejudice to the substantial rights of the defendant. Here the appellant has not suggested how under any possible conception of the record he was in any way prejudiced by the amendment.