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


SAME v. SIKORA et al.

Cr. 3172, 3186

Decided: May 29, 1939

Morris Lavine, of Los Angeles, for appellants. Earl Warren, Atty. Gen., and Paul D. McCormick, Deputy Atty. Gen., for the People.

Defendants were convicted after trial before the court without a jury of violation of subdivision 2, section 337a of the Penal Code. As the above-numbered appeals involve identical questions on analogous facts, both appeals will be considered together in this opinion.

These are the essential facts:

The information charged the defendants with violating subdivision 2, section 337a, of the Penal Code in the following language:

“The said Jack Pierce, Charles Sikora, and Margaret Johnson are accused by the District Attorney of and for the County of Los Angeles, State of California, by this information of the crime of violation of subdivision 2, Section 337a, Penal Code of California, a felony, committed as follows: That the said Jack Pierce, Charles Sikora, and Margaret Johnson on or about the 15th day of July, 1938, at and in the County of Los Angeles, State of California, did willfully, unlawfully and feloniously for gain, hire, reward, gratuitously and otherwise, keep and occupy a room, shed, tenement, tent, booth, building, float, vessel, place, stand and enclosure, and any part thereof, with a book and books, paper and papers, apparatus, device and paraphernalia, for the purpose of recording and registering a bet and bets, and purported bet and bets, and wager and wagers, and purported wager and wagers, and of selling pools and purported pools upon the result and purported result of trial and purported trial and contest and purported contest of skill, speed and power of endurance between beasts, to wit, horses.

“Contrary to the form, force and effect of the statute in such cases made and provided, and against the peace and dignity of the people of the State of California.”

Defendants demurred to the information on the ground, among others, that more than one offense was charged in the information, contrary to sections 950, 951, and 952 of the Penal Code and not in conformity with the provisions of section 954 of the Penal Code. This demurrer was overruled and defendants were subsequently convicted.

Defendants rely for reversal of the judgments on this proposition:

Numerous offenses are charged in the information in one count and are not separately stated as required by the provisions of section 954 of the Penal Code.

This proposition is tenable.

Section 1004, subdivision 3, of the Penal Code gives as one of the grounds of demurrer to an information:

“That more than one offense is charged, except as provided in section nine hundred and fifty-four.”

The exception referred to in the Penal Code section just quoted, to be found in section 954 of the same code, is that an information “may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts *.” (Italics added.)

Respondent's contention that the information pleaded the offenses in the language of the statute and is therefore sufficient is without merit, in view of the settled rule in California that where a penal statute enumerates several separate and distinct acts, the commission of each or any of which constitutes a crime, the information must charge the commission of the particular act or acts upon which the crime is based, and it is not sufficient to charge the defendant in the strict language of the statute. (People v. Lee, 107 Cal. 477, 480, 40 P. 754; People v. Plath, 166 Cal. 227, 234, 135 P. 954.)

The information charges at least eleven different crimes. These crimes are charged in the conjunctive; hence it is impossible to determine which offense the pleader intended to accuse defendant of having committed. For example, was the defendant charged with having kept a tent or building or a vessel for the purpose of unlawfully recording bets, etc.? The information fails to shed any light upon the subject.

In People v. Lee, supra, Mr. Justice Henshaw, speaking for our Supreme Court, says, 107 Cal. at page 480, 40 P. at page 755:

“Criminal proceedings, it is true, have been much simplified by the Codes, and many offenses may now be charged in the strict language of the statute. Nevertheless, there are certain fundamental principles which have neither been abrogated nor modified. A defendant is still entitled to be apprised with reasonable certainty of the nature and particulars of the crime charged against him, that he may prepare his defense, and, upon acquittal [or conviction], plead his jeopardy against further prosecution. Where, as under some of our statutes, several separate, different, and distinct acts are enumerated, the commission of each or any of which constitutes the crime, it is not sufficient to charge the defendant with being guilty of the crime, without further charging the commission of the particular act or acts upon which the crime is based. A person, for example, charged with vagrancy, is of right entitled to know whether he is called upon to meet the charge as being a common drunkard, or as being a dissolute associate of known thieves, or being a healthy beggar,—in short, as belonging to what class, or as having done what act, to lay him liable as a ‘vagrom man.’ ”

Applying the above stated rules of law to the facts of the instant case, it is apparent that the information charged defendants with the commission of numerous offenses in the same count and did not state them in separate counts as is permitted by section 954 of the Penal Code, and that thus the information did not inform defendants of the particular charge they were called upon to meet. Therefore, the demurrer to the information should have been sustained.

For the foregoing reasons the judgments appealed from are and each is reversed, and the trial court is directed to enter an order sustaining the demurrers to the information with leave to the district attorney to file an amended information if so advised.

McCOMB, Justice.

We concur: CRAIL, P.J.; WOOD, J.