People v. Kennedy

• Decision Date: 26 February 1953
• Docket Number: Cr. 4533
• Citation: 116 Cal.App.2d 273,253 P.2d 522
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. KENNEDY.

Page 522

253 P.2d 522

116 Cal.App.2d 273

PEOPLE v. KENNEDY.

Cr. 4533.

District Court of Appeal, Second District, Division 1, California.

Feb. 26, 1953.

Melvin C. Kennedy, in pro. per.

Edmund G. Brown, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

WHITE, Presiding Judge.

By information filed in the Superior Court of Los Angeles County, petitioner was charged in Count I with the crime of robbery, and in Count II with the offense of kidnapping for the purpose of robbery. He was convicted on both counts and from such judgments of conviction he appealed.

This court affirmed the judgment of conviction of kidnapping for the purpose of robbery and reversed the judgment of conviction of armed robbery, People v. Kennedy, 101 Cal.App.2d 709, 226 P.2d 359.

Thereafter, petitioner filed a petition for a writ of error coram nobis in the Superior Court of the County in which he had been tried, and the court there denied the petition on the ground that the Superior Court had no jurisdiction to hear the matter, as the judgment had been affirmed on appeal. The petitioner filed an appeal from the order denying his petition, and the appeal was dismissed. On September 24, 1952, this court issued an order stating that the petition for writ of error coram nobis which was filed in the Superior Court, and which was contained in the clerk's transcript on the appeal which had been dismissed, would be considered as a petition for writ of coram nobis made directly to the District Court of Appeal.

As his first ground for the issuance of the writ herein prayed for, petitioner alleges that the information filed against him did not accuse him of aiding and abetting in the kidnapping, which was all that the evidence adduced at his trial proved that he did. That the information was therefore void for uncertainty and that the pleading failed to allege facts constituting the crime of kidnapping for the purpose of robbery.

In this contention petitioner cannot be sustained. Penal Code, section 971, as it read in 1950, when the information was filed, provided, insofar as here pertinent: '* * * and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, shall hereafter be prosecuted, tried, and punished as principals, and no other facts need be alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal.'

From a reading of this section it is manifest that the information having charged petitioner as a principal, it was open to the district attorney to prove that the former actually committed the offense or that he aided and abetted in its commission, or advised and encouraged its commission. Petitioner having been charged as a principal in the crime of kidnapping for the purpose of robbery, it was not necessary that he be charged with aiding or abetting in said kidnapping as a prerequisite to the introduction of evidence that he did so, or to warrant a decision by the trial judge, if such aiding and abetting was proved beyond a reasonable doubt, that petitioner was guilty as a principal in the commission of the offense.

Petitioner's attack upon the sufficiency of the information is unavailing. Penal Code, section 952, reads as follows: 'In charging an offense, each count shall contain, and shall be sufficent if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused.'.

The information herein, charging as it did, that the accused had kidnapped his victim for the purpose of robbery in violation of the statute, Penal Code, section 209, apprised the former of what he would be expected to meet on the trial. Under the system of pleading in criminal cases prevailing in this state it is not necessary to allege the particular mode or means employed in the commission of an offense, except when of the essence thereof. The information having followed the language of the statute, the acts constituting the alleged kidnapping were sufficiently alleged, People v. Britton, 6 Cal.2d 1, 5, 56 P.2d 494. The foregoing also disposes of petitioner's claim that he...