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


Cr. 2422.

Decided: January 20, 1947

Richard C. Dinkelspiel, Alan A. Dougherty, and Douglas M. Moore, all of San Francisco, for appellant. Robert W. Kenny, Atty. Gen., and Ralph W. Scott, Deputy Atty. Gen., for respondent.

On April 8, 1946, an information was filed against defendant and appellant alleging in the first count a violation of Penal Code section 288, and in a second count a violation of Welfare and Institutions Code, section 702. The defendant was acquitted on the first count. The record shows that ‘We, the Jury in the above entitled cause, find the defendant Alfonso Codina, alias James Tessaro guilty of the crime of misdemeanor, to-wit, violating section 702 of the Welfare & Institutions Code, as charged in count two of the Information.’

The defendant on appeal ssserts that the prosecuting attorney made misstatements of facts, which were prejudicial to defendant; that the evidence was insufficient to support the verdict. In view of the conclusion reached on this appeal it is not necessary to consider the alleged prejudicial remarks. On the second point the sufficiency or insufficiency of the evidence was a question of fact. The complaining witness, a minor, child, testified to facts which, if believed by the jury, would sustain the findings of the jury if the information jurisdictionally stated a criminal offense.

The information in this case does not state a public offense. The Attorney General frankly states his position as follows: ‘It is contended by appellant that the information does not charge a crime or state facts sufficient to constitute a public offense. The point seems to be well taken. In charging the offense under section 702, the information merely alleges in substance that lewd acts were committed upon the person of the minor child involved. It does not allege that such acts caused, tended to cause, or encouraged the minor child to come within the scope and purview of section 700 of the Welfare and Institutions Code. It has been held that the gravamen of the offense is the tendency of the act or omission, and no offense is charged where the information does not allege that the act tends to cause the minor to become a person countenanced by the juvenile court law. People v. Salisbury, 59 Cal.App. 299, 210 P. 642; People v. Lamanuzzi, 77 Cal.App. 301, 303, 246 P. 557.’

An accused in a criminal case is entitled to a fair statement in the information or indictment of an offense described in a statute. In People v. Bergotini, 172 Cal. 717, 158 P. 198, the defendant was charged with contributing to the delinquency of certain minors. It was held that an information which set forth certain acts and then failed to allege how such acts contributed to the alleged delinquency was fatally defective. That is the situation in the instant case.

Penal Code section 952 provides that the charge in an information or indictment may be stated in the language of the statute, but in the present case the very pertinent language of sec. 702, Welfare and Institutions Code, namely, that the act or acts enumerated in the information caused or tended to cause the minor child ‘to become or to remain a person,’ such as described in any of the subdivisions of section 700, is lacking.

A demurrer was not interposed but an objection that the court lacked jurisdiction may be raised on appeal, as such objection is directed to the gist of the real foundation of the institution of the criminal procedure. People v. Smith, 103 Cal. 563, 37 P. 516; People v. Kinsley, 118 Cal.App. 593, 5 P.2d 938.

The contentions that appellant has been once in jeopardy and that the two verdicts are inconsistent, and that as a result the verdict of guilty was a nullity, appear to have been answered adversely to appellant in Rodriguez v. Superior Court, 27 Cal.2d 500, 165 P.2d 1, and the cases cited therein construing section 954 of the Penal Code, by which decisions this court is bound.

The judgment and order denying a new trial are reversed. Inasmuch as the information does not charge a public offense, the trial court is ordered to dismiss the information. People v. Schweichler, 16 Cal.App. 738, 117 P. 939.

WARD, Justice.

PETERS, P. J., and SCHOTTKY, Justice pro tem., concur.

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