People v. McKenna

Paterson, J. The defendant was tried and convicted on an information which charged that, “on or about the fifteenth day of July, 1888, at the county of San Luis Obispo, state of California, [the defendant] did' unlawfully, knowingly, and designedly, by false and fraudulent representations and pretenses, defraud one David Taylor of personal property, to wit, twenty hogs, of the value of $203.40, in lawful money of the United States, [159]the personal property of the said David Taylor, coiltrary to the form, force,” etc.

The most important question in the case is whether the facts stated are sufficient to support a conviction. There was no demurrer to the complaint, but there was a motion in arrest of judgment and a motion for a new trial. It is claimed on behalf of the respondent that the information is sufficient in the absence of a demurrer; that if the defendant had desired the information to be made more specific, he should have demurred on the ground that it did not substantially conform to the requirements of sections 950, 951, and 952 of the Penal Code. If, however, the facts stated in the information do not constitute a public offense, the objection to its sufficiency maybe made at any time. In civil cases the rule is, as stated by Mr. Justice Temple, that the plaintiff is not required “to allege vC-ith minuteness all the particulars and circumstances which constitute the evidence of the alleged fraud, but he must make the charge with sufficient distinctness to enable his adversary to come prepared with his evidence upon the general qxiestions of fraud which will be raised.” (Capuro v. Builders’ Ins. Co., 39 Cal. 125.) It matters not that no objection is made by demurrer. Objection may be made at any time, because it goes to the substance of the complaint or indictment. The question whether a thing has been done fraudulently is a matter of law, and an allegation of fraud in general terms presents no issuable fact. (Meeker v. Harris, 19 Cal. 289, 290; Triscony v. Orr, 49 Cal. 617; Sacramento Savings Bank v. Hync, 50 Cal. 202.) Where no facts are averred, no fads are adT mitted. (Payne v. Elliot, 54 Cal. 343; 35 Am. Rep. 80; Johnson v. Kirby, 65 Cal. 487.)

It is said by Mr. Bishop that “to charge simply in the statutory words that the thing was obtained by ‘fraud and pretense’ is not adequate; what the particxilar pre-, tenses were must be stated, both as. notice to the defend[160]