210 P. 632 | Cal. Ct. App. | 1922
Petitioner has asked this court for a writ of prohibition restraining the superior court from proceeding with his trial upon an amended indictment charging him with grand larceny, embezzlement, and obtaining money by false pretenses. When the original indictment was filed the defendant interposed a demurrer. This indictment was in nine separate counts, the first three charging grand larceny, embezzlement, and obtaining money by false pretenses, and all relating to the same transaction alleged to have occurred on November 1, 1921. The fourth, fifth, and sixth counts charged a commission of the same crimes in connection with a transaction alleged to have occurred on November 21, 1921. The seventh, eighth, and ninth counts charged the commission of the same crimes in relation to a transaction alleged to have occurred on December 5, 1922. The demurrer was sustained as to the third, sixth, and ninth counts — the three counts charging obtaining money by false pretenses. It was overruled as to all other counts. In the same order allowing the demurrer to these three counts the trial court directed the district attorney to file an amended *307 indictment. Within the time allowed such an amended indictment was filed by the district attorney without submission to the grand jury, and after the disposition of the pleas and motions interposed thereto the cause was set for trial upon the indictment as amended.
[1] In this proceeding for a writ of prohibition the question is whether the trial court has jurisdiction to proceed with the trial of the defendant upon the amended indictment. The position of petitioner is that the trial court is without jurisdiction to proceed because the amended indictment was not resubmitted to the same or any grand jury, nor was it presented by the foreman of any grand jury to the court, but was filed by the district attorney with the county clerk. The argument in support of the petition is that all indictments must be found by the grand jury, must be presented by their foreman in their presence to the court, and filed by the clerk; also that indictments cannot be amended in matters of substance by the district attorney, but that the cause must be resubmitted to the grand jury and a new indictment found by them.
The code requires that an indictment must be found by a grand jury. (Pen. Code, sec.
Section
[2] The original indictment alleged that the defendant with intent to cheat and defraud one Adriani falsely represented to him that he, the defendant, was the owner of a certain order for the payment of money drawn by Adriani upon the California Associated Raisin Company in favor of the Clovis Box Company and that he, the said defendant, could and would cancel the order and deliver the same to Adriani if the said Adriani would deliver to him the sum of $470.72; that through said false representations and fraudulent pretenses the defendant obtained the said sum from Adriani though at the time he had sold and assigned by indorsement said order to the California Pine Box Distributors, of Fresno; that the said Adriani believed said false and fraudulent representations; that defendant new them to be false and fraudulent, and that by means thereof, with the intent to cheat and defraud said Adriani, the defendant obtained from Adriani the sum mentioned. The amendment consists in the addition of the words that at no time after defendant had sold and assigned said order was he the owner, nor did he have the same in his possession, and that he did not cancel same or deliver it to said Adriani. Though it may be that the failure of the defendant to fulfill his promise to cancel the order and deliver the same to Adriani was an essential allegation to the charge of obtaining money by false pretenses, it is apparent that the addition of such allegation by amendment to the indictment did not change *309
the offense charged. (People v. Rippe,
The petition is denied and the writ discharged.
Langdon, P. J., and Sturtevant, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 7, 1922.
All the Justices present concurred.