People v. Oliveria

[378]

COOPER, C.

Appeal from judgment and order denying motion for new trial. Defendant was charged with the crime of robbery, committed on the eleventh day of December, 1898, in the county of Alameda, by forcibly taking from the person of one Joseph He vis one hundred and eighty dollars in gold coin. He entered his plea of “not guilty,” and, after trial before a jury, was convicted and sentenced to a term of three years in the state prison at San Quentin. He does not claim that the evidence is insufficient to justify the verdict, nor that the court erred in giving or refusing any instruction to the jury. He specifies certain alleged errors which he claims are prejudicial, and which we will notice in the order presented. It is claimed that the information charges the defendant under the name of Frank Oliveria, and that the evidence shows that the name of defendant is Frank Oliveria, Jr., and that defendant objected to the evidence on the ground of such variance. The information is entitled “People of the State of California against Frank Oliveria, Jr.” In the charging part it is stated: “The said Frank Oliveria on the eleventh day of,” etc., and concludes by stating: “And all of the acts of the said Frank Oliveria, Jr., in the premises were and are contrary to the form, force, and effect of the statute in such cases made and provided and against the peace and dignity of the people of the state of California.” The information was indorsed on the back thereof,“People of the State of California against Frank Oliveria, Jr.” When it was read to defendant with its indorsements, and he was asked his true name, he answered that his true name “is Frank Oliveria, Jr.” We think it sufficiently appears from the whole information that the defendant was charged under the name of “Frank Oliveria, Jr.” The Penal Code, section 959, provides: “The indictment or information is sufficient if it can be understood therefrom: .... 3. That the defendant is named, or, if his name cannot be discovered, that he is described by a fictitious name, with a statement that his true name is to the jury or district attorney, as the case may be, unknown.”

Section 960 provides: “Ho indictment or information is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits.”