People v. Collins

• Decision Date: 22 April 1960
• Docket Number: 6591,Cr. 6590
• Citation: 351 P.2d 326,54 Cal.2d 57,4 Cal.Rptr. 158
• Court: California Supreme Court
• Parties: , 351 P.2d 326 PEOPLE of the State of California, Plaintiff and Respondent, v. Leon Daniel COLLINS, John Willie Scott and Obie Brown, Defendants and Appellants. PEOPLE of the State of California, Plaintiff and Respondent, v. Oble BROWN, Jr., Defendant and Appellant.

Page 158

4 Cal.Rptr. 158

54 Cal.2d 57, 351 P.2d 326

PEOPLE of the State of California, Plaintiff and Respondent, v. Leon Daniel COLLINS, John Willie Scott and Obie Brown, Defendants and Appellants.

PEOPLE of the State of California, Plaintiff and Respondent, v. Oble BROWN, Jr., Defendant and Appellant.

Cr. 6590, 6591.

Supreme Court of California, In Bank.

April 22, 1960.

Burton Marks, Los Angeles, under appointment by the Supreme Court, and Umann & Marks, Los Angeles, for appellants.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen. and Robert M. Sweet, Deputy Atty. Gen., for respondent.

GIBSON, Chief Justice.

Defendants Collins, Scott and Brown were jointly accused of rape committed with force and violence in violation of subdivision 3 of section 261 of the Penal Code. ¹ The age of the prosecuting witness was not stated in the information, but the evidence at the preliminary hearing and the trial showed without dispute that her age was fifteen. The court sitting without a jury found defendants guilty of rape in violation of subdivision 1 of section 261 (intercourse with a female person under the age of eighteen). Motions for new trial were denied. Brown and Collins were sentenced to a state prison, and Scott was committed to the Youth Authority.

Defendants concede that the evidence is sufficient to support a finding that each of them had sexual intercourse with the complaining witness, a girl under the age of eighteen years, without the exercise of force or threat. It is their contention that they could not property be convicted of that offense, commonly called statutory rape, under an information charging them with forcible rape.

The subdivisions of section 261 do not state different offenses but merely define the different circumstances under which an act of intercourse constitutes the crime of rape. People v. Craig, 17 Cal.2d 453, 455, 110 P.2d 403. The cases of People v. Greer, 30 Cal.2d 589, 184 P.2d 512, and In re Hess, 45 Cal.2d 171, 288 P.2d 5, do not, as contended by defendants, impliedly overrule People v. Craig, supra. The Greer case holds that contributing to the delinquency of a minor (Welf. & Inst. Code, § 702) is necessarily included in the charge that defendant had intercourse with a girl under the age of eighteen, whereas the Hess case holds that contributing to the delinquency of a minor is not included in a charge that defendant forcibly raped a female of an unspecified age. In Greer defendant had notice that he was charged with an act against a minor which contributed to her delinquency, whereas in Hess he was not informed that he was being charged with having had forcible intercourse with a girl under the age of eighteen. In People v. Marshall, 48 Cal.2d 394, at page 403, 309 P.2d 456, at page 461, it was pointed out that in Hess as in Greer 'this court considered, as the yardstick for measuring the offenses included within the rape charged, the specific allegations of the accusatory pleading rather that the general code definition of rape as a crime which can be committed in various ways.'

An accused should be advised of the charge against him in order that he may have a reasonable opportunity to prepare and present his defense. When the information charges rape committed under the circumstances stated in a particular subdivision of section 261 and the prosecution offers proof of different circumstances which bring the act under another subdivision, the accused may be taken by surprise unless before the trial he has received notice of the possibility of such a variance by other means than the information. The case of People v. Snyder, 75 Cal. 323, 17 P. 208, which holds that under an information charging rape accomplished by force any of the matters mentioned in section 261 may be proved without regard to whether the defendant has had notice required by due process, is overruled. The following cases, which contain language or adopt reasoning similar to that in People v. Snyder, supra, are disapproved insofar as the language or holdings are contrary to the views expressed herein: People v. Jailles, 146 Cal. 301, 304, 79 P. 965; People v. Vann, 129 Cal. 118, 121, 61 P. 776; People v. Tollack, 105 Cal.App.2d 169, 172, 233 P.2d 121; People v. Blankenship, 103 Cal.App.2d 60, 66, 228 P.2d 835; People v. Cassandras, 83 Cal.App.2d 272, 276, 188 P.2d 546; People v. Mummert, 57 Cal.App.2d 849, 857, 135 P.2d 665.

The decisive question in the present case is whether the variance was of such a substantial character as to have misled defendants in preparing their defense. There is no indication whatever that defendants were prejudiced...