People v. Clement

HAYNES, C. The people appeal from an order in arrest of judgment. The information contained two counts—the first, for the larceny of a horse, buggy, and harness, and the second count charging an embezzlement of the same property. The defendant demurred to the information upon the ground that it charged more than one offense. The demurrer was overruled and a plea of not guilty entered. After all the evidence had been introduced, and during the argument of the case to the jury, the district attorney, with the consent of the court and without objection from the defendant withdrew the count charging embezzlement, and the jury found defendant “guilty of attempt to commit grand'larceny.’’ The defendant moved for a new trial and his motion was denied. He then moved in arrest of judgment, upon the ground stated in his demurrer, and, this motion being sustained, the people appeal.

That two distinct offenses are charged in the information has been decided by this court in at least two cases Avhere the facts were the same as here: See People v. De Coursey, 61 Cal. 134, and People v. Quvise, 56 Cal. 396. But appellant contends that the duplicity Avas cured by withdrawing the count charging embezzlement, and we are cited to authorities to show that the duplicity may be cured: (1) by verdict of guilty on one count and not guilty on the other; (2) by a nolle prosequi as to one count; (3) by taking a verdict on one count only; and (4) by election by the prosecuting officer as to which count he will proceed upon. These authorities, however, are under the old procedure, Avhich permitted several counts, and where, upon the face of the indictment, each count charged a distinct offense. But under that procedure the defendant was required to plead to each count, and thus a dis[495]tinct issue was made upon each, and the jury were required to find on each count as to which there was a plea of not guilty; and, while the district attorney might enter a nolle as to one or more counts, if this were done after the jury was sworn, unless the defendant consented, it was a bar to a further or new prosecution for the offense charged in such count. This, however, did not affect the issues upon other counts; but here the information was framed upon the theory that but one offense was charged, and it was upon that theory that the demurrer was overruled and a single plea of not guilty taken. As the defendant could not be required to plead to two offenses charged in the same information, it cannot be said that issue was joined as to either offense, and withdrawing one of the counts, after the plea, could not cure the defect; for, even if it be conceded that there was a plea to one offense, it could not be said that it applied to one of the offenses rather than the other. If the demurrer had been sustained, as it should have been, and the district attorney had then taken leave to amend by striking out the second count, and the plea had been taken as to the first, the defect would have been cured. The information being bad, under the statute, it could not be amended after the defendant’s plea was taken, without a new arraignment and plea to the amended information.