289 P. 215 | Cal. Ct. App. | 1930
Defendant appeals from a judgment of conviction of the crime of attempt to commit grand theft, as well as from an order by which his motion for a new trial was denied.
[1] The indictment against defendant in effect charged him with the commission of the crime of "attempt to commit grand theft" in that defendant "did wilfully, unlawfully and feloniously attempt to take property," etc.
In urging a reversal of the judgment, appellant contends that the indictment fails to state the commission of a public offense; that it does not conform to the requirements of sections
It is possible that, in accordance with rulings contained in authorities cited by appellant, all of which were rendered prior to statutory amendments in 1927 [Stats. 1927, p. 1043] and 1929 [Stats. 1929, p. 303] to sections
A comparison of the form of indictment prescribed by section
[3] As the indictment was drawn and presented defendant was accused by the name of Jack Hawley, with twelve differentaliases following. Before the action went to trial defendant formally objected to the reading to the jury of that portion of the indictment which included the several alias names of defendant, which objection was by the court overruled, with the result that the indictment was read by the clerk of the court to the jury as originally drawn. Defendant now complains that such action on the part of the trial court created a prejudice against him; and respondent admits that "there is little doubt that the court erred in denying defendant's motion to strike out that portion of the indictment containing the aliases." (SeePeople v. Maroney, *219
Although the circumstance establishes nothing, nor may it be used against defendant, an examination of the transcript of the evidence adduced on the trial of the action shows that he offered no evidence in defense of the charge against him. Furthermore, that the guilt of defendant of the offense of which he was charged was practically demonstrated.
Section 4 1/2 of article VI of the Constitution in effect declares that no judgment shall be set aside or new trial granted on account of any error as to any matter of procedure, "unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."
In a qualified concurrence in the opinion rendered in the case of People v. Fleming,
Considering the fact that the evidence herein pointed almost conclusively to the guilt of defendant, it would seem wholly improbable that error of the trial court in the premises had any effect upon the verdict of the jury.
The judgment and the order denying the motion for a new trial are affirmed.
Conrey, P.J., and York, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on June 16, 1930, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 3, 1930. *220