People v. Waid

• Decision Date: 29 September 1954
• Docket Number: Cr. 5087
• Citation: 274 P.2d 217,127 Cal.App.2d 614
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Robert WAID, Defendant and Appellant.

Page 217

274 P.2d 217

127 Cal.App.2d 614

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Robert WAID, Defendant and Appellant.

Cr. 5087.

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

Sept. 29, 1954.

Richard E. Erwin, Los Angeles, for appellant. ^*

Edmund G. Brown, Atty. Gen., Victor A. Gables, Deputy Atty. Gen., for respondent.

MOORE, Presiding Justice.

After having been convicted of violating section 4573.5 of the Penal Code, ¹ appellant filed a motion to annul, vacate and set aside the judgment on the grounds that (1) the trial court was without jurisdiction over the subject matter or the person of the accused; (2) jurisdiction to proceed was never properly established, since he was not tried in San Bernardino County where the offense of bringing the forbidden drugs into a state prison was consummated. From the order denying such motion comes this appeal. He seeks a reversal on two grounds, to wit, (1) the information was insufficient; (2) the Superior Court of Los Angeles County did not have jurisdiction to try the offense charged in the information.

Sufficiency of the Pleading

Appellant contends that 'where an act, though committed without the local jurisdiction of the County, is triable therein,' it is necessary to allege in the information the existence of facts that bring the case within the exception, thus alleging jurisdiction in the county wherein the information is filed. The answers to such contention are two: (1) the information complies with section 959 of the Penal Code. Its allegations declare that the offense was committed in Los Angeles County. There is no fatal variance where the pleading alleges the commission of a crime in one county even though the evidence proves the crime was committed by a series of acts, some of which were done in one county and some in another. People v. De Martini, 25 Cal.App. 9, 10, 142 P. 898. (2) The sufficiency of a pleading is a matter of substance, not of form. Such a question must be raised by demurrer. Since the accused failed to demur, he cannot on appeal for the first time make an issue of whether the pleading is sufficient. People v. Schoeller, 96 Cal.App.2d 61, 62, 214 P.2d 565. Especially is this true in view of the fact that the entire record discloses no miscarriage of justice. Constitution, Art. VI, sec. 4 1/2.

The Court Below Had Jurisdiction

Conceding that the court below had jurisdiction to entertain the motion to annul the judgment, there was no error in the denial of the motion.

'When a public offense is committed in part in one county and in part in another, or the acts * * * requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.' Penal Code, sec. 781.

Time was when, if a crime consisted of a series of acts, a number of which were done in one county and one or more done in another, prosecution for the offense would fail unless such a number of the series of acts occurred in one of the counties as would constitute a complete offense. Section 781, supra, was conceived for the purpose of extending the lines of jurisdiction beyond the limits fixed by the common law and thus forestall the technical rule relating to venue in multiple element offenses. See 30 A.L.R.2d 1265, 1268. Under the current rule where only a part of a crime has been committed in one county and the other part or parts have been committed in another, venue lies where only a part of the crime was done.

Because he was convicted under section 4573.5 of the Penal Code, forbidding a person to 'bring' the specified drugs into a state prison, and because he was shown to have sent the drugs by mail from Los Angeles to the Chino prison in San Bernardino, he contends that he could not be guilty of violating the statute. Looking to the intent of the legislature, it must be conceded that its intent was to prevent such drugs from getting into a prison. A person can effect such purpose by either bringing the drugs in his own hands or by placing the drugs in the possession of an efficient agent for delivery into the prison. 'To bring' originally signified the act of causing a thing to come with the subject of the verb; however, its growth has added the significance of causing to come; to procure; to cause to come from, into; to bring to pass, etc. Oxford English Dictionary, Webster's International Dictionary. The word has more than a score of meanings which demonstrate that the lawmakers intended to forbid a person to cause the drugs to be delivered to a state prison. That such was the intended significance of the word is emphasized by the language of section 781, supra, the remedial statute that tore loose the stifling doctrine of the common law. Even though appellant did not purchase the drugs in Los Angeles County and bring them in his own hands to the prison at Chino, he knew that by his delivering them to the United States Mail Service, the most dependable agency available, and prepaying their cost of transportation, they would be more nearly certain of arriving at the cell of his addressee than if he had undertaken to import them.

Appellant leads himself to the erroneous concept that the violation of the statute is not accomplished until the forbidden drugs enter the prison and therefore he could not be guilty by merely mailing them in Los Angeles. He knows that by so doing they will in due course of the mail arrive at the prison. The important act in the violation was the act of placing the drugs in the mail. The place where he did that was in the territorial jurisdiction of the Los Angeles County Superior Court. That ...