The PEOPLE of the State of California, Plaintiff and Appellant, v. Jerome REHMAN, Defendant and Respondent.
This is an appeal from ‘the order of the Superior Court * * * of Los Angeles, made * * * on the 3rd day of August 1962, setting aside Count I of the indictment under Section 995 of the Penal Code.’
In an indictment filed in Los Angeles County on June 14, 1962, Jerome Rehman was charged in Count I thereof with a violation of section 192, subd. 2, Penal Code (manslaughter) in that he did on or about the 29th day of June 1959 in Los Angeles County ‘wilfully, unlawfully, feloniously and without malice kill Rosa Lugo.’ The indictment shows on its face that in the first instance the figures and words, ‘9th day of June, 1959’ were typed in and such supposedly was the date of the alleged offense. The figure and letters ‘9th’ were sometime later crossed out with pen and ink and the figures ‘29’ and the initials ‘VO’ are handwritten in ink above the typewritten ‘9th.’ The foreman of the grand jury was named Verne Orr.
Count II of the indictment charged that Rehman with several other named persons was guilty of conspiracy to commit acts which were injurious to the public health and further to violate various numbered sections of the Penal Code, Business and Professions Code, Insurance Code, Health & Safety Code, and the rules promulgated by the State Department of Health. Many overt acts were set forth and alleged.
The clerk's transcript lodged in this court discloses that Rehman assertedly filed a demurrer to the indictment and a motion to set aside the indictment under section 995 of the Penal Code. However, the record before this court does not contain a copy of either the demurrer or the motion. We have pursuant to the Rules on Appeal directed the original superior court file brought to this court. From the original superior court file it is ascertained that on July 30, 1962, Rehman filed a motion to set aside the indictment. The motion followed the language of the statute (Pen.Code, § 995) and stated that it was ‘upon the ground that the defendant has been indicted without reasonable or probable cause.’ There was in support of such motion as extended statement of facts (portions of the testimony taken before the grand jury), written argument and points and authorities. The whole of that set of documents is devoted to the proposition that ‘reasonable or probable cause’ to indict Rehman was not shown before the grand jury. Not one word therein refers to the statute of limitations or to anything with reference to such statute.
On the same day, July 30, 1962, Rehman filed as a separate document a demurrer to the indictment with extended points and authorities. Therein he demurred to the indictment upon (among others) the grounds ‘that the facts stated do not constitute a public offense’—using the statutory language as contained in section 1004, subdivision 4 of the Penal Code. After three days of oral argument before the trial judge an order was made sustaining the demurrer as to Count I and granting the motion under section 995 of the Penal Code as to Count I.1
A ‘notice of appeal from order setting aside a portion of the indictment and request for additional record’ was filed by the prosecution on August 10, 1962. The notice reads in part that the appeal is ‘from the order of the Superior Court * * * made * * * on the third day of August, 1962, setting aside Count I of the indictment under Section 995 of the Penal Code.’ It further sets forth that ‘in addition to the normal record’ the appellant requests the record of the transcript of the proceedings before the grand jury and that such additional record was necessary because the trial court based its order granting defendant's motion under section 995 of the Penal Code upon the evidence presented to the grand jury. There is no word of reference in the notice of appeal to the ruling of the trial court in sustaining the demurrer as to Count I of the indictment upon the grounds that such count appeared to be barred by the Statute of Limitations.
A reśume ́of some of the evidence which was presented to the grand jury and the inferences which may be drawn therefrom is as follows: Jerome Rehman was during the time in question a doctor of osteopathy. A hospital known as Bixby Knolls Hospital on Atlantic Boulevard was licensed as a general hospital through Rehman and others. Rehman practiced medicine and operated at that and other hospitals. Rosa Lugo, a married woman 29 years of age, the mother of several children, had a cyst on her buttock and went to a clinic where Rehman engaged in his practice on occasions. Rehman told Mrs. Lugo she needed surgery to have the cyst on her buttock removed Her husband discussed the matter with the doctor and he, the husband, then consented to his wife's going to the hospital to have the cyst removed. She was operated on by Rehman on June 9, 1959, at the Southside Community Hospital. Dr. Montgomery was a consultant and he, along with other doctors and nurses who were present at the operation, testified before the grand jury. It was stated that Dr. Rehman removed the buttock cyst, removed the uterus and the appendix of Mrs. Lugo. The husband stated in effect that he was not aware of the operation on his wife's uterus and appendix. The operation lasted approximately 3 hours. Mrs. Lugo bled profusely and died on June 29, 1959. A pathologist testified in effect that he performed an autopsy and determined that she died as a direct result of the surgery and that septicemia was the cause of death—that the blood vessels were not adequately tied off and that a blood clot in the pelvic region, the size of a basketball, was found. Another doctor (a pathologist) testified in effect that he could not see the necessity for the surgery upon the uterus (typically called a hysterectomy) or for the removal of the appendix, that he had never seen anything like it before and that it was gross negligence and such was the reason for the death of Rosa Lugo. The circulating nurse at the time of the operation in question testified in part before the grand jury that Rehman was the ‘operating doctor,’ that three surgeries were performed on Mrs. Lugo at the one occasion. That first, the cyst on the buttocks was removed, then ‘a hysterectomy was performed,’ that there was excessive bleeding, that the patient was weakening and her blood was ‘turning black’ which indicated that ‘carbon dioxide instead of oxygen was going into the blood stream’ and further she testified ‘I was a little perturbed, and I have witnessed many doctors operating, in fact I have been a surgical nurse on a couple or three operations because I was under Mrs. Cascio's training, I worked for my husband for five years and I went in the hospital to learn the surgical procedure there at the hospital. I had the honor to work with many great doctors there, my husband included, and to me this was very unethical, although I am not qualified as a registered nurse, or a L.V.N., or a P.N., but watching other doctors work, to me this was very unethical and I made the statement, ‘Why the hell don't you turn her over and take out her tonsils,’ which I felt was too much on one woman to go through at one time, being under an anesthetic all of that time.'
The contention of appellant is that the evidence is such as to indicate strongly that the operation was performed in a grossly negligent manner and furthermore that neither deceased or her husband consented to the operation.
There was ample evidence to sustain the indictment. The order granting the motion to dismiss under Penal Code section 995 was reversible error.
A trial was had as to the charges contained in Count II of the indictment (conspiracy.) Rehman was convicted of the Count II charges of the indictment which in short were that he and others were engaged in a conspiracy to cheat and defeaud insurance companies, the federal government (under medicare assistance for dependents of armed service personnel) and other patients by means of unnecessary operations.
It is noted that the indictment was filed on June 14, 1962, which is 3 years and 5 days after the date of the operation upon Mrs. Lugo but within 3 years from the date of the death.
Appellant asserts that ‘in the crime of manslaughter the date of death commences the running of the statute of limitations.’ Respondent contends that the statute of limitations commences to run for the crime of manslaughter at the time the blow is struck or the cause inflicted and not at the time of death of the victim.
At the time of the argument before the trial court the testimony before the grand jury was analyzed in great detail and discussed at length and the matter of the statute of limitations under the demurrer was argued extensively and many citations of authority on both sides were presented to the court.
Section 800 of the Penal Code reads as follows: ‘An indictment for any other felony than murder, the embezzlement of public money, the acceptance of a bribe by a public official or a public employee, or the falsification of public records, must be found, and information filed, or case certified to the superior court, within three years after its commission. An indictment for the acceptance of a bribe by a public official or a public employee, a felony, must be found, and the information filed, or case certified to the superior court, within six years after its commission.’ (Emphasis added.)
In California the statute of limitations is jurisdictional and an indictment or information which shows on its face that the prosecution is barred by the statute of limitations fails to state a public offense (People v. Holtzendorff, 177 Cal.App.2d 788 2 Cal.Rptr. 676; People v. McGee, 1 Cal.2d 611, 613, 36 P.2d 378).
In the case before us is obvious that the offense of manslaughter had not been committed until the victim died. The death completed the crime of manslaughter. Until the death occurred it was not manslaughter and before the moment of death the prosecution could not have investigated and prosecuted Rehman as a person who had committed manslaughter. See State v. Taylor, 31 La.Ann. 851; Brockway v. State, 192 Ind. 656, 138 N.E. 88, 26 A.L.R. 1338; Alderson v. State, 196 Ind. 22, 145 N.E. 572, 573.
We are not here concerned with the rules as expressed in cases involving ex post facto laws, venue matters, res judicata, or double jeopardy situations. If we are to deal with the question at all we should limit ourselves to the facts of this case and consider it strictly and solely as a statute of limitations matter unmixed with any other phase of the law.
It was appropriately stated by Justice Learned Hand in Daeche v. U. S., 2 Cir., 250 F. 566, 570, to the effect that if a crime is defined as an act irrespective of the consequences, the crime is the act; but if a crime is defined to include some consequence of the act the crime is the consequence when produced by a human agency.2
In effect our law makes the crime of manslaughter a composite one—the striking of the victim (or whatever was done) does not alone make the crime nor does the death of a victim without a striking (or some other conduct or force) make the crime. It is a composition of the two. Death must by reason of our statute (Pen.Code § 194)3 take place ‘within a year and a day after the stroke received or the cause of death administered’ to constitute the crime of manslaughter. The death in the case at hand occurred within a matter of twenty days from the date ‘the act was done.’
Respondent places some reliance on what is stated in People v. Miller, 12 Cal. 291. In that case the question involved was whether the indictment showed on its face that the offense of which the defendant was convicted was committed more than 3 years before the indictment was filed. The indictment was for murder and the defendant was convicted of manslaughter. There was no averment as to the time, which would be essential in an indictment for manslaughter. The court properly reversed but that is in no way of any assistance to Rehman in this case. The court in the Miller case made reference to the common law rule and to Blackstone's Commentaries. See Commonwealth v. Ladd (1960) 402 Pa. 164, 166 A.2d 501, where the defendant struck a blow on September 21, 1958, and the victim died on November 1, 1959, and a motion by defendant to quash the charge as being beyond the year and a day was denied and where the common law on that subject is discussed at some length in scholarly fashion.
There can be no doubt a demurrer is a proper method or procedure to use in testing whether the facts as stated in an indictment constitute a public offense. (Penal Code, § 1004.) The demurrer in this instance was proper in form. If the defendant's contention to the effect the Statute of Limitations started to run at the time of the operation (or the striking of the blow) namely, on June 9, 1959, and the indictment was filed on June 25, 1962, then clearly the facts stated do not constitute a public offense for the indictment would show upon its face that the Statute of Limitations had run. See People v. Degnen, 70 Cal.App. 567, 234 P. 129. If the prosecution's contention is correct that the time is computed from the date of the death then the Statute of Limitations did not run. In this particular case no amount of amending of the indictment could have been of any assistance to the prosecution and as a consequence no leave to amend the indictment was granted, nor would the filing of a new indictment have been of any assistance.
No special procedure is provided by the Penal Code for the raising of the question of the bar of the statute of limitations. There are no provisions for a special plea to reach the issue (People v. Allen, 47 Cal.App.2d 735, 118 P.2d 927.)
As heretofore stated the Statute of Limitations in criminal actions is jurisdictional and an indictment which shows on its face that the prosecution is barred by the Statute of Limitations ‘[fails to] state a public offense.’ People v. Hoffman, 132 Cal.App. 60, 22 P.2d 229; In re Davis, 13 Cal.App.2d 109, 56 P.2d 302; In re McGee, 29 Cal.App.2d 648, 85 P.2d 135; 14 Cal.Juris.2d § 202.
The point may be raised at any time before or after judgment (In re McGee, 29 Cal.App.2d 648, 85 P.2d 135; People v. McGee, 1 Cal.2d 611, 36 P.2d 378; In re Davis, 13 Cal.App.2d 109, 56 P.2d 302; People v. Holtzendorff, 177 Cal.App.2d 788, 2 Cal.Rptr. 676; Doble v. Superior Court, 197 Cal. 556, 799, 241 P. 852.4
It is the law of California at this time at any rate that the entry of a minute order sustaining a demurrer to an indictment is a sufficient judgment within the meaning of the statutes from which an appeal may be taken. In People v. Dobbs, 70 Cal.App.2d 261, 161 P.2d 46, it is said: ‘[T]hat no provision is made in the Penal Code for any entry of judgment on demurrer other than the entry of the order upon the minutes, as provided for in section 1007. * * *
‘Section 1238, which sets forth specifically the instances in which the People may appeal, makes no mention of a judgment of dismissal but definitely provides for an appeal ‘from a judgment for the defendant on a demurrer.’ Assuming that a court, under its general powers, could properly enter a judgment of dismissal, after a demurrer has been sustained and upon refusal to amend, and that such a judgment would be appealable under subdivision 2 of section 1238, it would be unreasonable to hold that this subdivision refers exclusively to a judgment entered under such implied powers and that it does not apply or relate to the only such judgment which is specifically provided for in the Penal Code, the one mentioned in section 1007. Section 1005 provides for a demurrer to an information. Section 1006 provides for an early hearing on that demurrer. Section 1007 then provides that on considering this demurrer the court ‘must give judgment,’ and then provides that its order thereon ‘must be entered upon the minutes.’ Under some circumstances, in civil cases, a minute order is considered as a judgment for the purpose of serving as a foundation for an appeal and no good reason appears why the same should not be true, in such a case as this, where the code section expressly provides that the court must give judgment and then, in effect, provides that this judgment shall be entered in the form of a minute order. As the court pointed out in the Jordan case: ‘The order in the minutes is the judgment.’ Assuming that a judgment of dismissal may properly be entered after the sustaining of a demurrer, under certain conditions, another form of judgment, to be entered as a minute order, is specifically provided for in section 1007. In our opinion the entry of such a minute order is a sufficient judgment, within the meaning of the statutes, from which an appeal may be taken.'
It is apparent from what has heretofore been set forth that the order granting the motion under section 995 of the Penal Code was in error and should not have been granted. It is further apparent that the order sustaining the demurrer to Count I of the indictment upon the grounds that the Statute of Limitations had run was in error and the demurrer should have been overruled.
Neither of the parties in this cause has mentioned or intimated that this court cannot now pass upon the determination of the trial court (order sustaining demurrer to Count I of the indictment) from which no appeal was taken. Nor has either party mentioned that no appeal was taken from the order sustaining the demurrer. It is clear from the record that the prosecution did not appeal from the order with reference to the demurrer as to Count I. No amount of liberal interpretation or flexible thinking will permit of a holding to the effect that the notice of appeal in this case included an appeal from anything other than the section 995 proceedings. Although the order sustaining the demurrer was clearly in error it is now final and this court can do nothing about it. Under the circumstances this court has no jurisdiction to make any order, or decree or otherwise to act with reference to the order sustaining the demurrer.
This court granted a rehearing in this case to the end that the People could present further authority to this court with reference to the appealability of the order sustaining the demurrer to the indictment. People v. Alves, 154 Cal.App.2d Supp. 877, 315 P.2d 755, is the sole authority which has been submitted. The argument seems to be that in 1951 the Legislature changed the law (amended sections 1007 and 1008, Pen.Code) and that therefore People v. Dobbs, supra, is no longer good law in California. An examination of the statutory history of the sections in question leads us to the conclusion that there is no merit to appellant's contention in this respect.
The minute entry with reference to the order on the demurrer has heretofore been set forth in full (footnote 1). Sections 1007 and 1008 of the Penal Code are set forth in the footnote.5
Clearly the effect of the sustaining of the demurrer (upon the grounds that the statute of limitations had run) under the particular and peculiar circumstances as evidenced in this case is to dispose of Count I of the indictment. The judge apparently felt that no amendment to the indictment could be made (with reference to changing the date of the death or changing the date of the commission of the operation) which would have been of any assistance to the prosecution, and that a referral to another or the same grand jury would have resulted in nothing but repetition.
In 1945 the Governor established a ‘Special Crime Study Commission on Criminal Law and Procedure.’ The ‘Final Report of the Commission’ was filed June 30, 1949. The letter of transmittal of the report states in part the activities of the Commission.6
The report set forth among other things a review of its activities.7
In 1949 Assembly Bill 2599 was introduced. That Bill embodied the recommendations of Judge Shaw as revised and concurred in by the commission.
In the report under the heading of ‘Recommendations for Proposed Changes in Criminal Procedures in Inferior and Superior Courts of the State of California’ the proposed amendments to the sections in question are set forth and each section is accompanied by a note stating briefly the reason for amending it.8
It will be noted that the language in sections 1007 and 1008 as set forth in Assembly Bill 2599 is substantially the same as the sections are presently written in the Penal Code. The Bill was not passed at that session of the Legislature.
The ‘Senate Interim Judiciary Committee Progress Report’ transmitted to the Senate June 19, 1951, sets forth the statement of what happened to A.B. 2599 in 1949 and the purposes of the bill.9
In 1951 Senate Bill Number 543, which insofar as sections 1007 and 1008 are concerned, was identical with A.B. 2599 (1949) was introduced and passed into law.
A reading of the entire background of the statute in question and all of the reports with reference thereto indicate that People v. Dobbs was not mentioned and nothing was stated with reference to changing the law as enunciated in that case.
We are convinced, considering the number of experts who were involved with the Commission's proceedings and the various legislative interim committees who studied the matter at hand, that had they or any of them ever intended to change the law as stated in People v. Dobbs, the change would have been made and in plain unmistakable language. Nothing like that was done. We believe that until overruled People v. Dobbs states the law of this state with reference to the appealability of an order sustaining a demurrer.
To the end that the record be complete in this court, the order granting the motion to set aside Count I of the indictment under section 995 of the Penal Code is reversed
1. Transcript of judge's statement at time of making his ruling:‘The Demurrer is sustained on the ground of misjoinder as to Counts I and II, and they are ordered severed. ‘Secondly, the Demurrer is sustained as to Count I on the ground that the same appears to be barred by the statute of limitations. (Emphasis added.) ‘Third, the Demurrer is overruled in all other respects. ‘No. 4 the motion under 995 Penal Code is granted as to Count I and is denied as to Count II. (Emphasis added.) ‘Now the result of this ruling in my opinion will be as follows: ‘That first the two counts are severed, and I want that to be clear that they are severed prior to the rulings that follow, because no matter what happens these two matters should not be tried together. The Court feels that the acts alleged are too remote from one another to compel the Defendants in Count II, the six other Defendants, to sit through the trial of Count I. There appears to be no evidence in the record to connect the other six Defendants with that count. So no matter what happens on the other rulings they should be severed. ‘Now the Court is satisfied that the statute of limitations does apply * * * ‘The reason the Court is trying to be careful about the order of these rulings is that I do not believe the trial should be delayed on Count II awaiting any Appellate decision as to Count I. That is why I have set these orders forth in a logical sequence so as to accomplish that result. ‘Then, thirdly, of course, the Demurrer is overruled in all other respects, which would be as to Count II, and on all other grounds as to Count I. Then the motion under 995 is granted as to Count I and, of course, there can be an appeal from that order and ruling, but still again if that were reversed, Count I would still be tried separately from Count II. ‘The motion under 995 is denied as to Count II and there is no serious request on the part of the Defendant that it should be granted as to Count II, and I can see no basis for it either. Those are the rulings and in that order.’ (Emphasis added.) MINUTE ENTRY ‘Proceedings are resumed from August 2, 1962. Deputy District Attorney John A. Marin; Defendant Jerome Rehman with counsel, A C S Ramsey and Defendants Mark Sincoff, Richard Alfred Gorman and Charles Edwin Symes with counsel, A C S Ramsey and Russell Pray, present. Arguments on defendants' motions to dismiss indictment and demurrers to indictment are completed. The court makes the following ruling: 1—Demurrer is sustained on the grounds of misjoinder of Counts I and 2 and they are ordered severed. 2—Demurrer is sustained as to Count I on the grounds same appears to be barred by the statute of limitations. 3—Demurrer is over-ruled in all other respects. 4—Motion under 995 Penal Code is granted as to Count 1 and denied as to Count 2. All defendants waive reading of Count 2 of amended information. Each: Pleads ‘Not Cuilty’ Count 2. Trial as set on Count 2 of amended information September 21, 1962, 9 A M in Department South E. Sincoff: Remain on own recognizance. Rehman, Gorman and Symes: Remain on bail.' (Emphasis added.)
2. ‘In short, if the crime, as homicide, be defined to include some consequences of the act, it may be argued and has been generally decided (citing cases) that the crime takes place only where the consequences occur. The crime is the consequence where produced by human agency whether near or far.’
3. ‘Deceased must die within a year and a day. To make the killing either murder or manslaughter, it is required that the party die within a year and a day after the stroke received or the cause of death administered; in the computation of which the whole of the day on which the act was done shall be reckoned the first.’
4. Section 1002, Penal Code. The only pleading upon the part of the defendant is either a demurrer or a plea. Section 1012, Penal Code. When any of the objectives mentioned in Section 1004 appears on the face of the accusatory pleading, it can be taken only by demurrer, and failure so to take it shall be deemed a waiver thereof, except that the objection to the jurisdiction of the court and the objection that the facts stated do not constitute a public offense may be taken by motion in arrest of judgment.
5. Section 1007: ‘[Order sustaining or overruling demurrer: ‘Entry of order: Proceedings after issuance of order.] Upon considering the demurrer, the court must make an order either overruling or sustaining it. If the demurrer is overruled, the court must permit the defendant, at his election, to plead, which he must do forthwith, unless to court extends the time. If the demurrer is sustained, by a superior court, the court must, if the defect can be remedied by amendment, permit the indictment or information to be amended, either forthwith or within such time, not exceeding 10 days, as it may fix, or, if the defect or insufficiency therein cannot be remedied by amendment, the court may direct the filing of a new information or the submission of the case to the same or another grand jury. If the demurrer is sustained by an inferior court, the court must, if the defect can be remedied, permit the filing of an amended complaint within such time not exceeding 10 days as it may fix. The orders made under this section shall be entered in the docket or minutes of the court.’ Section 1008 ‘[Dismissal of action when demurrer sustained and no amendment permitted or amendment not filed in time: Effect of dismissal.] If the demurrer is sustained, and no amendment of the accusatory pleading is permitted, or, in case an amendment is permitted, no amendment is made or amended pleading is filed within the time fixed therefor, the action shall be dismissed, and, except as provided in Section 1010, the court must order, if the defendant is in custody, that he be discharged or if he has been admitted to bail, that his bail be exonerated, or, if money or other property has been deposited instead of bail for his appearance, that such money or other property be refunded to him or to the person or persons found by the court to have deposited such money or other property on his behalf.’
6. ‘The project of a study of the criminal law in this State, both substantive and adjective, was a vast undertaking of a highly technical nature. The commission early sought the help of informed thinking throughout California. Public hearings were held to which specialists in the many and varied fields of criminal law and procedure were invited. The facilities of the law schools and their staffs were used; the opinions of members of the bar were sought; law enforcement officials and probation and correctional officials met and consulted with the commission. Many months were spent in public discussion of those matters upon which there was a consensus of opinion that some change seemed advisable.’
7. ‘B Review of activities. Immediately after the appointment of the members of the commission and its organization, a program of procedure was adopted which called for the holding of hearings in many communities, both rural and metropolitan, in the State. In addition to the public hearings, the commission conducted many business meetings and independent research and had considerable correspondence concerning many of the problems, with which it was dealing with recognized authorities in the study and practice of criminal law. Attending these hearings were law enforcement officers, including sheriffs, chiefs of police and district attorneys, justices of the appellate courts and judges of the trial courts, probation and parole officers, psychiatrists, Members of the Legislature, representatives of the State Bar and of county bar associations, public defenders, deans and members of the faculties of law schools, and other citizens whose experience and views on the administration of criminal justice proved of great value in the work of the commission. To all of these, the commission extends its thanks and appreciation for their constructive suggestions and cooperation. ‘Among those who gave the commission valuable aid in the performance of its work was Honorable Charles W. Fricke, for over twenty-one years Judge of the Superior Court of Los Angeles County, and for several years prior to the commencement of his judicial service a prosecuting attorney of extensive experience. Judge Fricke submitted for the consideration of the commission many suggestions for the simplification and improvement of the administration of our criminal law, many of which we adopted and are incorporating in this report. ‘C. Procedural Changes in the Trial of Criminal Cases in Inferior and Superior Courts. The Honorable Hartley Shaw, Presiding Judge of the Appellate Department of the Superior Court of the County of Los Angeles, very generously presented to this commission for its consideration his proposed revision of the procedure of the trial of criminal cases in the inferior and superior courts of this State. This proposed revision is the result of years of careful study by Judge Shaw of the procedures now governing the administration of justice in California. ‘Judge Shaw's work was undertaken at the request of Chief Justice Phil S. Gibson, Chairman of the Judicial Council. The commission has spent considerable time in analyzing the proposals presented by Judge Shaw, and in point studies with him has made many amendments and additions thereto.’
8. Section 1007: Upon considering the demurrer, the court must make an order either overruling or sustaining it. If the demurrer is overruled, the court must permit the defendant, at his election, to plead, which he must do forthwith [unless the court extends the time]. If the demurrer is sustained, by a superior court, the court must, if the defect can be remedied by amendment, permit the indictment or information to be amended, either forthwith or within such time, not exceeding ten days, as it may fix, or, if the defect or insufficiency therein cannot be remedied by amendment, the court may direct the filing of a new information or the submission of the case to the same or another grand jury. If the demurrer is sustained by an inferior court, the court must, if the defect can be remedied, permit the filing of an amended complaint within such time not exceeding ten days as it may fix. The orders made under this section shall be entered in the docket or minutes of the court. Note: This and proposed Sections 1008, 1009, and 1010 are a complete rewriting and rearranging of Sections 1007 to 1011, inserting provisions to take care of proceedings in the lower courts, in which the course of procedure differs from that in the superior courts, but without intention to make any substantial change in present superior court procedure. In this section the substance of present Section 1011 is inserted, and other matters are added, to cover completely the order to be made in ruling on a demurrer. ‘Overruling’ and ‘sustaining’ are substituted for ‘allowing’ and ‘disallowing’ as being more suitable words to use now in describing the action of the court upon a demurrer. This and the other sections mentioned will, as changed, alter the present practice in the lower courts, of dismissing the action under Section 1387 for the purpose of filing an amended complaint. The change will permit the much more convenient procedure of filing the amended complaint in the same action. Both this section and Section 1009, as proposed, require an amended pleading, rather than an amendment, in the lower courts, because the complaint there is verified by some individual and would lose that character if changed by others. (Emphasis added.) Section 1008: If the demurrer is sustained, and no amendment of the accusatory pleading is permitted, or, in case an amendment is permitted, no amendment is made or amended pleading is filed within the time fixed therefor, the action shall be dismissed, and, except as provided in Section 1010, the court must order, if the defendant is in custody, that he be discharged or if he has been admitted to bail, that his bail be exonerated, or, if money or other property has been deposited instead of bail for his appearance, that such money or other property be refunded to him or to the person or persons found by the court to have deposited such money or other property on his behalf. Note: See note to Section 1007. This is the substance of present Section 1009, with parts of Section 1008. The exception now in the middle of Section 1008 is placed in Section 1010 and enlarged to cover bail and money as well as custody. Provision for dismissal uses ‘action’ instead of ‘proceeding,’ as a more appropriate word (see Section 683), and is differently phrased from present provision in Section 1008 but has same effect because by proposed Section 1007 the court must permit an amendment if the defect can be remedied. ‘Or other property’ added because of Section 1298.
9. The committee considered proposals for revision and amendment of various portions of the laws relating to procedure in criminal cases. (1) ‘Shaw Bill.’ On two occasions the committee met with the Honorable Hartley Shaw, Presiding Judge, Appellate Department, Superior Court of County of Los Angeles, to discuss Assembly Bill No. 2599 (1949) Reg. Sess.), more commonly known as the ‘Shaw Bill.’ In these conferences, it was determined that Assembly Bill No. 2599 included material and changes which had been included in the original draft of the bill. As a result of these conferences Judge Shaw submitted to the committee a memorandum indicating what changes he felt should be made in Assembly Bill No. 2599, which read, in part, as follows: ‘Referring to what has been denominated as the ‘Shaw Bill’ for revision of the Penal Code, which was introduced in the Assembly at the 1949 Session of the Legislature as Assembly Bill No. 2599, the following suggestions are submitted in the hope that they may be useful if the bill is again to be considered. ‘After the introduction of the bill some minor changes were made, mostly to correct typographical and other such drafting errors. A copy of the bill as so amended (except for the title and enacting clause) appears on pages 42 to 85 of the Final Report of the Special Crime Study Commission on Criminal Law and Procedure, dated June 30, 1949. As set forth in this report, each section amended is accompanied by a note stating briefly the reasons for amending it. ‘The general purpose of this series of amendments is set forth on page 41 of this report. In brief, it is to make all the procedural provisions of the Penal Code applicable to all proceedings in all courts, as far as possible and practicable—something which was done for the Code of Civil Procedure, in 1933, and is equally needed for the Penal Code, there being at present, much doubt and uncertainty on some parts of the procedure in the lower courts in criminal cases. (Emphasis added.) ‘Since the adoption at the recent election of the constitutional amendment providing for the reorganization of the inferior court system, I have gone over these amendments to see if any changes should be made. The inferior court system will be composed, when this amendment becomes fully effective, of municipal and justices' courts, and the amendments were drawn with such courts in mind. A few of the sections, particularly the definition of ‘inferior courts' in proposed Section 691, included references to other inferior courts; but since the constitutional amendment will not abolish these other courts until after Statutes of 1951 become effective, the reference to them will be needed until that occurs, and can do no harm thereafter.’ As a result of these conferences and the memorandum submitted by Judge Shaw, Senate Bill No. 543 was introduced at the 1951 Regular Session. This bill contained the amendments suggested by Judge Shaw in his memorandum, and was passed by the Senate.
WOOD, P. J., and LILLIE, J., concur.