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


Cr. 4045.

Decided: February 04, 1947

A. Brigham Rose, of Los Angeles, for appellant. Robert W. Kenny, Atty. Gen., and Henry A. Dietz, Deputy Atty. Gen., of San Francisco, for respondent.

Defendant, accused by information of murder, was found guilty, by a jury, of manslaughter. The appeal is from the judgment, on order denying defendant's motion for arrest of judgment and from the order denying a motion for a new trial.

It appears from the record that the crime was committed on July 16, 1945, in a social club in San Pedro, California; appellant and the deceased were members of the club. On arrival at the club with a friend, Chas. F. Linck, appellant first visited the bar and had a drink, then went into the card room which adjoined the bar. The deceased, together with five others, was playing poker. Appellant's friend joined the game and later withdrew, whereupon, appellant undertook to take part but was informed in substance and incidentally, in no uncertain terms, to get out of the game; the deceased joined in the protest. Appellant finally left the game and together with Linck went into the bar and from there left the building. In a few minutes, both returned and entered the card room. An argument over $40 ensued, following which appellant and Linck again left the card room. The exist from the building was from the bar room, and as appellant was leaving the deceased was also in the bar room. It was at this point that appellant, about to leave through the doorway, turned and shot the deceased. The cause of death was ‘internal hemorrhage due to gunshot wound in the abdomen.’

Following the preliminary examination, defendant was bound over for manslaughter. The District Attorney, however, filed an information charging murder. It is contended on appeal that such action was without authority hence various motions seeking to limit the trial to the offense of manslaughter should have been granted. It is also contended that the instructions including the offense of murder constituted error.

The above-mentioned contentions are without merit. Sections 809 and 1008 of the Penal Code provide that the District Attorney may amend the information within certain limits. An information can not be amended ‘so as to charge an offense not shown by the evidence taken at the preliminary examination’. The trial court's rulings on the above-mentioned motions were correct. It follows that the instructions relating to the offense of murder were proper.

It is also contended that the court erred with regard to certain ruling on the admissibility of evidence. It appears that an effort was made by defendant at the trial to prove that deceased died from improper treatment and not from the gunshot wound. Without going into detail, it is sufficient to note that appellant's contentions in this regard are also without merit. The trial court's rulings were proper.

The evidence abundantly supports the jury's verdict; the jury was adequately and properly instructed in every respect and there are no prejudicial errors in the record.

The attempted appeal from the order denying the motion in arrest of judgment is dismissed. The judgment and the order denying defendant's motion for a new trial are, and each is, affirmed.

DORAN, Justice.

YORK, P.J., and WHITE, J., concur.

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