People v. Kellin

• Decision Date: 15 November 1962
• Docket Number: Cr. 4029
• Citation: 25 Cal.Rptr. 925,209 Cal.App.2d 574
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond KELLIN aka Ray Armistice Mayson, aka Lloyd James Hervey, Defendant and Appellant.

Page 925

25 Cal.Rptr. 925

209 Cal.App.2d 574

PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond KELLIN aka Ray Armistice Mayson, aka Lloyd James Hervey, Defendant and Appellant.

Cr. 4029.

District Court of Appeal, First District, Division 3, California.

Nov. 15, 1962.

John J. Dutton, San Jose, for appellant (under appointment of the District Court of Appeal).

Stanley Mosk, Atty. Gen., of the State of California John S. McInerny, Derald E. Granberg, Deputies Atty. Gen., San Francisco, for respondent.

SALSMAN, Justice.

The defendant was found guilty of grand theft and appeals from the judgment and an order denying a motion for new trial. He argues here that the trial court permitted the district attorney to amend the information so as to charge an offense not shown by the evidence taken at the preliminary examination, in violation of Penal Code section 1009. This contention has merit, and compels a reversal of the judgment.

At the preliminary hearing the only evidence presented related to an alleged theft of a check dated November 10, 1960 in the sum of $2,093.86, belonging to defendant's employer. The defendant was held to answer on this evidence.

In the superior court defendant was charged in an amended information with grand theft alleged to have been committed 'on or about the 10th day of November, 1960.' At trial evidence and testimony was received relating to theft of the check for $2,093.86. In addition, the district attorney offered evidence relating to theft by the defendant of the following checks: (1) check dated October 23, 1960 in the sum of $360; (2) check dated December 8, 1960 in the sum of $300, and (3) check dated December 8, 1960 in the sum of $200. It is undisputed that there was no evidence at the preliminary examination relating to theft of any check other than the check for $2,093.86. Defendant made proper objection to evidence relating to the claimed theft of any check not shown by the evidence taken at the preliminary examination. The objection was overruled. Defendant later moved to strike all evidence relating to checks other than the check for $2,093.86. This motion was denied.

At the conclusion of the People's case the district attorney moved to amend the amended information to charge theft 'on or about the 28th day of October through the 28th day of December, 1960.' Defendant objected to this amendment, but the court overruled his objection and the information was amended as requested.

In its instructions the court told the jury: 'If the jury finds that the defendant is guilty of embezzlement of any item of $200 or more, it will not be necessary for the jury to determine his guilt or innocence with respect to any other items.'

Penal Code section 1009 permits an information to be amended at any time during trial. By the express language of the statute, however, the information cannot be amended 'so as to charge an offense not shown by the evidence taken at the preliminary examination.' It is true that the amendment to the information here allowed by the court changed only the date of the alleged offense, but when considered together with the court's instruction, it permitted the jury to find the defendant guilty of theft of any or...