274 P. 592 | Cal. Ct. App. | 1929
The appellant was charged by an information in two counts with having embezzled the sum of fourteen hundred dollars and sixteen hundred dollars, respectively. During the course of the trial the judge pointed out to counsel that the commitment of the magistrate was for theft instead of embezzlement. The district attorney thereupon moved the court for leave to amend the information by substituting the words "grand theft" for that of "embezzlement, charging the defendant with the crime of *360 grand theft, a felony instead of embezzlement" and changing the language of the charge to read that the defendant "did unlawfully obtain — lawful money of the United States, the property of one Hazel M. Kiler."
Defendant's counsel then agreed to proceed "without having the formal amended pleading before the court" or waiting to have it typewritten, whereupon the defendant was asked to plead severally to the counts charging grant theft and interposed the plea of not guilty to each of them. The trial proceeded; the formal amended information was filed and the jury returned a verdict of guilty on each count. This appeal is prosecuted from the judgment pronounced upon the verdict.
[1] Appellant's first contention is that he never plead to the amended information, and he directs our attention to the fact that from the oral statement of the court when permission was granted to amend, the language employed was that the defendant "did unlawfully obtain" (the amount of money designated in each count) "lawful money of the United States, the property of one Hazel M. Kiler," whereas the amended information actually filed used the words "did unlawfully take away," etc. Concerning appellant's contention that he did not plead to the amended information, it is without merit. In effect he waived the reading of the information, with like effect as he did when first arraigned, and plead not guilty to two counts charging grand theft. [2] The real question is: Could the information be so amended? If it could be so amended not only is the first question conclusively settled, but also appellant's second assignment of error to the effect that by the amendment he was twice in jeopardy, falls to the ground.
In 1927 two sections of the Penal Code which have a direct bearing upon the instant question were amended. Section
[3] Appellant argues that the evidence is insufficient to support the verdict and he refers to an answer of the complaining witness on cross-examination to the following question: "During all the time that the defendant . . . you were giving the defendant money, were the different sums you advanced to the defendant, were they in the nature or loans or were they gifts?"
The answer was, "They were all loans." It must be borne in mind that there were a great number of transactions, many of which were loans. The other testimony of this witness, however, together with the admissions of the defendant abundantly establish the fact that the two different sums of money made the basis of the charge were given to him for the following particular purpose: First, to buy a home for the complaining witness; second, to buy and pay for a Chrysler automobile. Neither of these purposes were fulfilled, but the appellant made use of the money for his own purposes. A similar situation was involved in People v. Kirkpatrick,
In view of the testimony establishing that all of the sums of money were neither gifts nor loans we cannot give undue weight to an answer thus obtained. Further, the most that *364 can be said of the testimony is that there is a conflict which we are not called upon to weigh.
Judgment affirmed.
Works, P.J., and Craig, J., concurred.