People v. McCurdy

• Decision Date: 28 November 1958
• Docket Number: Cr. 6316
• Citation: 332 P.2d 350,165 Cal.App.2d 592
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Norman Alexander McCURDY, Defendant and Appellant.

Page 350

332 P.2d 350

165 Cal.App.2d 592

The PEOPLE of the State of California, Plaintiff and Respondent, v. Norman Alexander McCURDY, Defendant and Appellant.

Cr. 6316.

District Court of Appeal, Second District, Division 2, California.

Nov. 28, 1958.

MacBeth & Ford, Norman MacBeth, Patrick H. Ford, Los Angeles, and Scott Raymond, for appellant.

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

HERNDON, Justice.

Appellant was accused in count I of the information of an assault with intent to commit murder (Penal Code, § 217) and in count II he was charged with burglary in that he entered a building with intent to commit assault with intent to commit murder, a felony (Penal Code, § 459.) On November 21, 1957, after a non-jury trial, appellant was found guilty of assault with a deadly weapon (Penal Code, § 245) on the theory that this was a lesser offense necessarily included within the charge of count I. Appellant applied for probation and further proceedings were continued to January 3, 1958. On the latter date the court ordered 'proceedings suspended' on count I, granted probation on specified conditions and dismissed count II 'in the interests of justice.'

Thereafter the probation officer reported that on January 14, 1958, appellant had violated the terms of his probation. After a hearing on April 18, 1958, probation was revoked and appellant was sentenced to state prison for the crime of assault with a deadly weapon, a felony, 'a lesser offense that that charged in count I of the information and necessarily included therein * * *.'

On April 22, 1958, appellant filed his notice of appeal '* * * from the Judgment and Sentence in above case, from the Order of April 18, 1958, revoking probation, and from any and all other orders made on April 18, 1958, in the above matter.' The record consists of the clerk's transcript, and a reporter's transcript which includes nothing other than the oral proceedings on the hearing of April 18, 1958, when probation was revoked and sentence pronounced. No record of the oral proceedings at the trial is presented.

The sole question posed by appellant is whether an information charging an assault with intent to commit murder under Penal Code, section 217 ¹ will support a conviction under Penal Code, section 245 ² on the theory that the crime defined in the latter section is a lesser offense necessarily included within the former as charged.

'The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.' People v. Greer, 30 Cal.2d 589, 596, 184 P.2d 512, 516; In re Hess, 45 Cal.2d 171, 174, 288 P.2d 5; People v. Krupa, 64 Cal.App.2d 592, 598, 149 P.2d 416. The language of the accusatory pleading furnishes the standard by which to determine what offenses are 'necessarily included' in the offense charged within the meaning of section 1159 of the Penal Code. People v. Marshall, 48 Cal.2d 394, 405, 309 P.2d 456.

In applying the foregoing tests to the case at bar, it should be noted that the pertinent language of the instant information is as follows: 'The said Norman Alexander McCurdy is accused by the District Attorney of and for the County of Los Angeles, State of California, by this information of the crime of assault with intent to commit murder in violation of Section 217, Penal Code of the State of California a felony, committed as follows: That the said Norman Alexander McCurdy on or about the 4th day of September, 1957, at and in the County of Los Angeles, State of California, did willfully, unlawfully and feloniously and with malice aforethought, assault Giles B. St. Clair, a human being, with intent to commit murder.'

We hold that by every reasonable intendment the quoted language charging the commission of an assault with intent to commit murder necessarily implies the employment of a deadly instrumentality or a 'means of force likely to produce great bodily injury' so that such language, of necessity, charges a violation of section 245 of the Penal Code. It would seem unrealistic to deny that a charge of attempted murder implies the employment of a means likely to produce great bodily injury.

Emphasizing the fact that the information in this case contains no allegation that he had used a deadly weapon, appellant cites as cases directly in point People v. Murat, 1873, 45 Cal. 281, in which a conviction for assault with a deadly weapon was reversed where the indictment charged an assault with the intent to commit murder making no mention of the use of a 'deadly weapon' and People v. Arnett, 1899, 126 Cal. 680, 59 P. 204, in which there was a reversal for the same reason.

But we are in accord with respondent's contention that such pre-1927 decisions as People v. Murat, supra, and People v. Arnett, supra, are no longer controlling. ³ As stated in People v. Beesly, 119 Cal.App. 82, 84, 6 P.2d 114, 970: 'The sufficiency of an indictment or information is not to be tested by the rule of the common law nor by the rules which existed prior to the amendments of 1927 and 1929 of our statutes relating to pleading in criminal cases. The true rule can be determined only by a consideration of all of the statutes affecting the subject as they exist since those amendments. The purpose of an indictment or information is to inform the accused of the charge which he must meet at the trial. At common law, where this information came solely from the indictment, much particularity was required. * * * [119 Cal.App. at page 84, 6 P.2d 114] As a part of the accusatory procedure the law now provides that in every case the accused is entitled to a copy of the testimony given before the grand jury or the committing magistrate, as the case may be (secs. 870, 925, Pen.Code), and he is today better informed as to the case he must meet than was an accused under the detailed form of pleading required at common law. * * * [119 Cal.App. at page 85, 6 P.2d at page 115] Section 952, which formerly required the pleading to set forth the particular circumstances of the offense charged, as amended, declares that it shall be sufficient if it be 'in any words sufficient to give the accused notice of the offense of which he is accused.' There, in a nutshell, is stated the principle of our present simplified form of pleading a criminal offense--the accused is entitled to notice of the offense of which he is charged but not to the particular circumstances thereof, such details being furnished him by the transcript of the testimony upon which the indictment or information is founded [119 Cal.App. at pages 85-86, 6 P.2d at page 115].'

Section 245 of the Penal Code provides for the punishment of 'an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury. * * *' To argue that a charge of the most aggravated of all assaults, to-wit, assault with intent to commit murder, does not embrace the lesser offense defined in section 245 is to argue that an assault with intent to commit murder does not necessarily involve the use of a deadly instrumentality or a 'means of force likely to produce great bodily injury.' To sustain such a contention would be to sacrifice substance and common sense upon the altar of technicality and would involve reversion to outmoded and archaic concepts of pleading in criminal cases.

Respondent has cited a group of seven pre-1927 decisions in which indictments or informations charging assault with intent to commit murder were held sufficient to support convictions of assault with a deadly weapon where either the character of the instrumentality used or the fact of the use of a 'deadly weapon' was alleged. People v. Turner, 65 Cal. 540, 542, 4 P. 553; People v. Pape, 66 Cal. 366, 367, 5 P. 621; People v. Bentley, 75 Cal. 407, 410, 17 P. 436; People v. Gordon, 99 Cal. 227, 229, 33 P. 901; People v. Arnold, 116 Cal. 682, 685, 48 P. 803; People v. Romero, 143 Cal. 458, 77 P. 163; People v. Craig, 152 Cal. 42, 44, 91 P. 997. There is merit in respondent's argument that in the...