People v. Gusti

Belcher, C. C.Section 397 of the Penal Code, as ¡amended in 1893, provides: “ Every person .... who ■sells or furnishes, or causes to be sold or furnished, intoxicating liquors to any Indian, is guilty of a felony.”

An information was filed against the defendant, which charged as follows: “The said N. Gusti, on the twentieth day of April, A. D. 1895, at and in the county of Sonoma, state of California, did willfully, unlawfully, and feloniously furnish, and cause to be furnished, intoxicating liquor, to wit, wine, to an Indian, to wit, Molinda Dugan, contrary to the form, force, and effect of the statute,” etc.

A demurrer to the information was interposed upon the ground that it charged two offenses, to wit: “ The offense of furnishing intoxicating liquor to an Indian, and the offense of causing to be "furnished intoxicating liquor to an Indian.”

The court below sustained the demurrer, and ordered the district attorney to file a new information. This he declined and failed "to do for more than thirty days, and thereupon the court ordered that the defendant be discharged, and his bail exonerated.

[179]From the judgment on the demurrer and the order discharging defendant the people appeal.

Of course, an indictment or information must charge but one offense (Pen. Code, sec. 954), and if it charges more than one, it is subject to demurrer upon that ground. The question then is, Did the information here charge two offenses? We do not think it did. It is a well-settled rule of law that “ when a statute enunciates a series of acts, either of which separately or all together may constitute the offense, all of such acts may be charged in a single count, for the reason that notwithstanding each act may, by itself, constitute the offense, all of them together do no more, and likewise constitute but one and the same offense.” (People v. Gossett, 93 Cal. 641; People v. Harrold, 84 Cal. 567; People v. Frank, 28 Cal. 507; People v. Shotwell, 27 Cal. 394.)

If the defendant furnished the intoxicating liquor he caused it to be furnished; and if he caused it to be furnished, he, in legal effect, furnished it himself, and was criminally responsible for the act. (Pen Code, sec. 31.)

Mr. Wharton, in his work on Criminal Pleading and Practice, ninth edition, section 228, states the law as follows: “ Though the language of the statute be disjunctive, e. g.,- burned, or caused to be burned, and the indictment charge the offense in the conjunctive, e. g., burned, and caused to be burned, the allegation, as has been noticed, is sufficient. The same rule applies where the intent is averred disjunctively. In either case the superfluous term may be rejected as surplusage. And it has been held that when the words of the statute are synonymous it may not be error to charge them alternatively.”