People v. Witt
| Decision Date | 21 November 1975 |
| Docket Number | Cr. 1863 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Marcus L. WITT, Jr., et al., Defendants and Appellants. |
GEO. A. BROWN, Presiding Justice.
Appellants, Marcus L. Witt, Jr., Joe Witt and Marcus L. Witt, III, 1 were convicted by a jury of conspiracy to defraud the estate of Pearle P. Zalud and named legatees and devisees in violation of Penal Code section 182, subdivision 4. 2 The trial started on October 23, 1973, and ended November 28, 1973.
Appellants urge a number of points for reversal which we shall consider seriatim after a summary of the pertinent facts. Appellants do not argue that the evidence was insufficient to support the verdict.
Pearle P. Zalud died in Porterville, Tulare County, at the age of 85 years on February 4, 1970, leaving an estate valued at approximately $1,000,000. She was a member of a pioneer family in that area and maintained a home there, although she lived part of the time in Los Angeles.
Her formally drawn will dated October 1, 1967, and a codicil thereto dated July 26, 1969 (hereinafter referred to as the 'formal will') were filed for probate in Los Angeles County on March 10, 1970. Except for a few minor bequests, this formal will left her estate to be used for charitable purposes, including the City of Porterville and the Roman Catholic Bishop of Fresno, a corporation sole.
At the hearing in the Superior Court of Los Angeles County on March 31, 1970, for admission of the formal will to probate, appellant Joe Witt and Marcus L. Witt, Jr., appeared and presented a later will purportedly executed by decedent on October 12, 1969, and witnessed by Marcus L. Witt, Jr., and Marcus L. Witt, III, (hereinafter referred to as the 'Witt will'). This will, which was typed on a one-page Wolcotts printed form, left all of the decedent's estate, except $6,000, to Joe Witt, who was unrelated to decedent.
In the subsequent will contest proceeding which went to trial in March 1971 in Los Angeles County, the jury determined that the Witt will was not signed by the testatrix, Pearle P. Zalud. 3
On October 26, 1972, the information in the case at bench was filed in Tulare County. The information in substance alleged that in pursuance of a conspiracy among appellants, which continued between October 12, 1969, and March 26, 1970, appellants on or about the 12th day of October 1969 in the County of Tulare procured, prepared or produced a false and fraudulent will under the name of said Pearle P. Zalud. This was the single overt act alleged and the prosecution's evidence showed that this overt act consisted of appellant Joe Witt going to an office machine store in Proterville and causing the proprietress to type the Witt will.
At the trial and during final arguments on November 26, 1973, the People's motion to amend the conspiracy count was granted over appellants' objection and an amended information was filed on November 27, 1973. The amended information extended the continuation of the conspiracy through March 1971 and alleged a second overt act consisting of appellants Joe Witt, Marcus L. Witt, Jr., and Marcus L. Witt, III, testifying as to the authenticity of the Witt will in the Superior Court of Los Angeles County in March 1971 during the civil will contest proceeding.
Appellants first contend that the proceeding is barred by the statute of limitations.
In California no agreement amounts to a conspiracy unless an overt act is done to effect the object thereof, and the pleading and proof of such an act is a necessary element of the offense. (Pen.Code, §§ 184, 1104; People v. Crosby (1962) 58 Cal.2d 713, 728, 25 Cal.Rptr. 847, 375 P.2d 839.) It is also established that '(a)s the overt act marks the commission of the crime and fastens criminal liability upon the conspirators (citations), the period of limitations must be deemed to begin running at that time; and where, as here, the conspiracy as charged is a continuing one, the period begins to run with the commission of the last overt act alleged.' (People v. Crosby, supra, 58 Cal.2d at p. 728, 25 Cal.Rptr. at p. 856, 375 P.2d at p. 848; see Bompensiero v. Superior Court (1955) 44 Cal.2d 178, 184--185, 281 P.2d 250; People v. Legerretta (1970) 8 Cal.App.3d 928, 934, 87 Cal.Rptr. 587.)
Since the only overt act alleged in the original information occurred on October 12, 1969, and the information was filed on October 26, 1972, the three-year statute of limitations (Pen.Code, § 800) barred the information on its face.
In the field of criminal law a statute of limitations is jurisdictional in nature. It is an essential element of the offense charged, to be proven by the prosecution, and the defense is not waived by defendant's failure to raise it. Accordingly, when an information shows on its face that the prosecution of the offense is barred by the statute of limitations, the defense may be raised at any time before or after judgment. (In re Demillo (1975) 14 Cal.3d 598, 601, 121 Cal.Rptr. 725, 535 P.2d 1181; People v. McGee (1934) 1 Cal.2d 611, 613, 36 P.2d 378; People v. Swinney (1975) 46 Cal.App.3d 332, 340, 120 Cal.Rptr. 148.)
The record herein shows that appellants did not demur to the information or raise the bar of the statute of limitations until November 19, 1973, 4 during the prosecution's rebuttal testimony, when appellants moved to dismiss the information on the ground the statute had run. The court denied the motion under the erroneous belief that the running of the statute was tolled on October 11, 1972; which was the date appellants were bound over for trial in the superior court, rather than on the date the information was filed on October 26, 1972.
Later on the same day (November 19, 1973), after both the prosecution and defense had rested, appellants' counsel moved for a judgment of acquittal pursuant to Penal Code section 1118.1, on the ground the statute of limitations had run, which again was denied.
Three trial days later, on November 26, 1973, the prosecutor indicated he would move to amend the information to allege a second overt act as having occurred in March 1971, and the amendment was allowed to be filed over appellants' objection during final arguments on November 27, 1973. Further, a continuance was denied to appellants. 5
A proper resolution of the problem posed by this set of facts requires an examination of the procedural aspects of the attack launched upon the inforhmation. The motions denominated a motion to dismiss and a motion for judgment of acquittal pursuant to Penal Code section 1118.1 are inappropriate and unauthorized procedural devices to attack a defect appearing upon the face of the pleading. A motion made pursuant to Penal Code section 1118.1 is an evidentiary motion going to the sufficiency of the evidence to sustain a conviction of the offense charged, and, if granted, operates as a judgment on the merits. (See Pen.Code, §§ 1118.1, 1118.8.) The code does not recognize a motion labeled a motion to dismiss, and it also appears that the statutory procedures are intended to be exclusive. (See People v. Indian Peter (1874) 48 Cal. 250, 253; People v. Odom (1970) 3 Cal.App.3d 559, 564, 83 Cal.Rptr. 520; 18 Cal.Jur.3d, Criminal Law, § 968, p. 694.)
The appropriate statutory remedies for attacking a defect appearing upon the face of the information going to a failure to state a triable offense, as in the case at bench, are demurrer (Pen.Code, §§ 1004--1007), motion to dismiss the jury (Pen.Code, §§ 1113--1117), motion in arrest of judgment (Pen.Code, §§ 1185--1188), and appeal. (See People v. Megladdery (1940) 40 Cal.App.2d 748, 757, 106 P.2d 84.) The order or judgment entered pursuant to these procedures does not finally dispose of the matter if the prosecution can remedy the defect. (See above Penal Code citations; as to a judgment on appeal, see People v. Rose (1972) 28 Cal.App.3d 415, 418, 104 Cal.Rptr. 702.)
From what has been said, it follows that since appellants did not demur to the information but raised the limitations issue before the jury returned its verdict, their appropriate remedy was a motion to discharge the jury pursuant to Penal Code section 1113, 6 instead of a motion to dismiss or motion for judgment of acquittal. While appellants were in error in their nomenclature for the motions on November 19, we exalt substance over form and treat the motions as if they had been properly made under Penal Code section 1113.
Penal Code section 1113 has been a part of the code since 1872, but it has never been definitively interpreted nor is it referred to in any of the standard reference works on criminal law. Keeping in mind the canon of construction that every word in a statute must, where possible, be given effect, it is of crucial significance in interpreting section 1113 that the statute uses the discretionary 'may' rather than the mandatory 'must' or 'shall.' Taking this directory language in conjunction with the rule that if the defect is of facts charged which can be cured by amendment such an amendment should be permitted, we can perceive no reason for the use of the discretionary language in the statute other than to give the trial judge an opportunity, if otherwise proper, to permit an amendment of the information to correct the defect.
That, of course, is precisely what occurred in the case at bench; the judge permitted an amendment to allege a second overt act bringing the charge well within the statutory...
To continue reading
Request your trial
-
People v. Jurado
...p. 818, 103 Cal.Rptr. 431, 500 P.2d 7; People v. Martinez, supra, 82 Cal.App.3d at p. 13, 147 Cal.Rptr. 208; People v. Witt (1975) 53 Cal.App.3d 154, 170-171, 125 Cal.Rptr. 653, cert. den. 1976, 425 U.S. 916, 96 S.Ct. 1518, 47 L.Ed.2d However, where there is an appeal from a judgment of con......
-
People v. Harrison
...It is clear that a trial court may permit an amendment of the information at any stage of proceedings. (People v. Witt (1975) 53 Cal.App.3d 154, 164-166, 125 Cal.Rptr. 653; People v. Spencer (1972) 22 Cal.App.3d 786, 799, 99 Cal.Rptr. 681.) The policy of the law particularly favors amendmen......
-
People v. Bell
... ... Since in criminal cases in California the statute of limitations is considered "jurisdictional," courts have treated it either as an element of the offense or as a factor that is equivalent to an element of the offense. In People v. Witt (1975) 53 Cal.App.3d 154, 162, 125 Cal.Rptr. 653, the court stated: "In the field of criminal law a statute of limitations is jurisdictional in nature. It is an essential element of the offense charged, to be proven by the prosecution, and the defense is not waived by defendant's failure to raise ... ...
-
People v. Edwards
...analysis by observing that generally a complaint or information may be amended even as late as trial. (§ 1009; People v. Witt (1975) 53 Cal.App.3d 154, 165, 125 Cal.Rptr. 653.) Here, the amendment was filed within two weeks of defendant's arrest, even before the preliminary hearing, and wel......