People v. Monteith
14 P. 373
Cal.
1887
Check Treatment
Hayne, 0.

— The- appellant, Albert Monteith, was convicted of the сrime of grand larceny, and sentenced to four years in the state prison. Several points are made on the appeal.

1. It is contended that the information is not sufficiеnt to support the judgment. The information first charges, cleаrly, specifically, and ‍​‌​​‌‌‌​‌‌​​​​‌​​‌​‌‌​​​‌​​​‌​​‌​​​​‌​‌‌​‌​‌​​​​‍in formal phrase, that Albert Monteith сommitted the crime of grand larceny in stealing a horse of the value of two hundred dollars, *8together with a saddle, bridle, аnd blanket of the value of twenty-five dollars. It then procеeds as follows: “All of said personal property was then and there the personal property of Gardner F. Williams, and was of the aggregate value of $225, and was stolen, taken, and carried away as aforesaid by the said Gardner F. Williams, contrary to the form, force, and ‍​‌​​‌‌‌​‌‌​​​​‌​​‌​‌‌​​​‌​​​‌​​‌​​​​‌​‌‌​‌​‌​​​​‍effect of the statute,” etc.

Thе argument is, that this charges an offense against Gardner F. Williams, and not against the prisoner. But it is apparent that the insertion of the name of Williams was a mere clerical errоr. The information first distinctly states that the prisoner stole the property, and that it was the property of Williams; and it cаnnot be that Williams stole his own property. Moreover, thе statement in question is, that the property was “ stolen, taken, and carried away as aforesaid by the said Gardner F. Williams,” which clearly refers to the first part of the information, and shows that the name of Williams was not intended to follow. The words last quoted may bе stricken out altogether ‍​‌​​‌‌‌​‌‌​​​​‌​​‌​‌‌​​​‌​​​‌​​‌​​​​‌​‌‌​‌​‌​​​​‍without in any degree impairing the sufficiency of the information. We think that, taking the whole information together, it sufficiently charges t.he prisoner with the crime of which he was convicted.

Very probably there was a dеfect of form. But defects of form must be taken advantage of by demurrer. A defendant cannot be allowed to take his chances of a favorable verdict, and hold in resеrve the power to have an unfavorable one set aside for a defect of form which could easily have been rectified if attention had been called to it at the proper time.

2. Part of the defense was, that the prisoner was intoxicated when he took the horse. With refеrence to this, a witness for the prosecution, ‍​‌​​‌‌‌​‌‌​​​​‌​​‌​‌‌​​​‌​​​‌​​‌​​​​‌​‌‌​‌​‌​​​​‍who saw the prisoner a short time before he took the horse, wаs asked what appeared to be his condition as tо sobriety. It is urged *9that since the witness was not an expert she was not competent to testify on this point. But drunkenness is, unfortunatеly, of such common occurrence, that it does not require an expert to pronounce upon it. We think the сase falls within the principle of People v. Sanford, 43 Cal. 32, 33.

3. The fact that the information charged the stealing of ‍​‌​​‌‌‌​‌‌​​​​‌​​‌​‌‌​​​‌​​​‌​​‌​​​​‌​‌‌​‌​‌​​​​‍a horse, whereas the evidence showed the stealing of a “ gelding,” does not constitute a variance. (People v. Pico, 62 Cal. 52.)

The other points made do not require special notice. We therefore advise that the judgment and order be affirmed.

Foote, C., and Belcher, C. C., concurred. The Court.

For the reasons given in the foregoing opinion, judgment and order affirmed.