People v. Beesly

The petition is largely a restatement of the argument presented in appellant's brief. The argument that no case has as yet been decided involving the sufficiency of an information charging the precise offense here involved is not at all persuasive. As to the case of People v. Horiuchi, 114 Cal.App. 415 [300 P. 457, 460], the statement quoted from the opinion in the petition that, "Such statement must be in ordinary and concise language and made in such manner as to enable a person of ordinary understanding to know what was intended. But, above all things, the charge must be so certain that a court would be enabled to pronounce judgment upon conviction," we cannot but feel that the learned court rendering the opinion could not have had in mind the fact that by the amendment of 1927 to section 959 of the Penal Code those requirements for the sufficiency of an indictment or information were removed from our rules of pleading. The facts of the Horiuchi case have no resemblance to the facts here.

[8] Petitioner is in error in the assertion that the amendment of the information, by changing the allegation of the information that the defendant was accused of forgery to the averment that he was accused of a violation *Page 90 of the narcotic law did not change the substance of the charge. As a charge of forgery the information was defective because it failed to allege an intent to defraud, but, with the charge changed to a violation of the narcotic law (Stats. 1929, p. 380) which does not require an intent to defraud as an element of the crime, the failure to charge that intent ceased to be a defect. Furthermore, section 952 requires that the public offense be "specified" in the pleading. A further material difference is evident when we consider that the penalty which would follow a conviction is not the same for the two offenses.

The cases cited upon the question of the constitutionality of the Poison Act (Stats. 1907, p. 124) are not in point. In the case of In re Lockett, 179 Cal. 581 [178 P. 134], the sole description of the act made punishable was contained in two words, neither of which was in the English language and neither of which had any common use in any language; People v. AhSum, 92 Cal. 648 [28 P. 680], while apparently in point, ceased to be authority with the change in the law of pleading; and In re Peppers, 189 Cal. 682 [209 P. 896], was not a decision passing upon a statute not in the English language.

The petition is denied.

Craig, Acting P.J., and Thompson (Ira F.), J., concurred.

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 January 7, 1932. *Page 91