People v. Byrd

VALLES, J. By information defendant was accused in count I of forging the name W. E. Savage on the endorsement of a check, in count II of forging the name Flemón Johnson on the endorsement of a cheek, and in count III of grand theft in unlawfully taking $200 from George S. Miller on or about August 1, 1959.

On the day of trial the district attorney filed an amended information. The only amendment was to count III. Instead of merely alleging that defendant unlawfully took $200 from George S. Miller on or about August 1, 1959, it alleged additionally, “and within a twelve consecutive month period prior thereto, and while said defendant was an employee of George S. Miller. ’ ’

It is asserted the court erred in permitting the amended information to be filed in that it was not timely and that it did not conform to the evidence taken at the preliminary hearing. The court may permit an amendment of an information at any stage of the proceeding, and the trial shall continue as if the pleading had been originally filed as amended unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement may be granted. (Pen. Code, § 1009.) Whether the prosecution will be permitted to amend an information is a matter within the sound discretion of the trial court and its determination will not be overturned on review in the absence of a clear abuse thereof. (People v. Stoddard, 85 Cal.App.2d 130, 138 [192 P.2d 472].) We find nothing in the record to show that the substantial rights of defendant were in any way prejudiced by the amendment. There was no abuse of discretion.

The claim that the amendment did not conform to the evidence taken at the preliminary may not be considered. The transcript of the evidence taken in that proceeding is not before us. In the absence of the evidence taken at the [843]preliminary, this court must indulge all presumptions in favor of the judgment, and assume the amendment did not change the offense to one not shown in the evidence taken at the preliminary hearing. (People v. Walker, 170 Cal.App.2d 159, 163 [338 P.2d 536].)

Defendant says he was denied a continuance. The record does not support him. He did not request one. On the contrary, he told the court, “At this time, your Honor, we waive time and are ready to proceed to trial.”

Pacific Coast Wrecking Company, a licensed demolition company, was owned by George S. Miller. Pacific Coast Wrecking Company and City Wrecking & House Moving Company became a joint venture. Later the two companies became Pacific Coast Wrecking Company. In March 1959 an account was opened in the name of City Wrecking with Security-First National Bank. Later the account was changed to Pacific Coast. At all times George S. Miller was the only person authorized to sign checks on the account.