PEOPLE v. BARWICK (1936)

Defendant was charged with perjury, upon complaint that at the trial of his son for theft of an automobile he testified that his boy was in Quartzite, Ariz., on September 25, 1935, the same day and the same time, according to the testimony of police officers, that the latter committed the theft in Los Angeles. When the perjury case was called for trial at 10 o'clock a. m. the district attorney filed and handed to defendant an amended information, charging him with a prior conviction in that he was convicted in November, 1931, of possession of a still. Through his counsel defendant thereupon asked time to plead to the amended information, which request was refused by the court. Defendant was then arraigned upon the amended information, pleading not guilty, and the court over objection ordered the trial to proceed at once, denying a continuance even until 2 o'clock upon the afternoon of the same day to allow defendant and his attorneys to prepare to meet the additional charge. Upon trial defendant was found guilty of perjury and also guilty of the prior conviction. His motion for new trial was denied, and he was sentenced to prison. From the judgment of the court and order denying his motion for new trial, he appeals.

Section 990 of the Penal Code provides: “If, on the arraignment, the defendant requires it, he must be allowed a reasonable time, not less than one day, to answer the indictment or information. He may, in answer to the arraignment, move to set aside, demur, or plead to the indictment or information.”

Corpus Juris, volume 16, at page 389, lays down the general rule relating to a new or amended indictment, as follows: “The filing of an amended or new indictment or information is the beginning of a new case and the accused is always entitled to the statutory time within which to plead.” In considering a similar problem, the Oklahoma Criminal Court of Appeals, in the case of Bohannan v. State, 11 Okl.Cr. 69, 142 P. 1092, 1093, made this observation: “In the case at bar the court went too far in permitting amendments and forcing the accused to proceed with the trial. The plain provisions of the law should be respected and when the court found that the information was insufficient, the jury should have been discharged, and the cause passed for trial to such time as the statute could be complied with. There is ample authority for the position that the filing of a new information makes a new case, and that the accused is entitled to the statutory time in which to plead. Turner v. State, 21 Tex.App. 198, 18 S.W. 96; Whitesides v. State, 44 Tex.Cr.R. 410, 71 S.W. 969.” In our own state, in the case of People v. Moody, 69 Cal. 184, 10 P. 392, where the district attorney was allowed to amend the information after trial had commenced, the Supreme Court reversed the conviction, holding that “the information, when amended, charged an offense, and this information, so amended, could have been treated as an original information then for the first time presented.” Similarly, in People v. Clement, 4 Cal.Unrep. 493, 35 P. 1022, the Supreme Court laid down the rule that there must be a new arraignment and plea to an amended information.

This being the case, it was error to compel appellant to enter his plea to the amended information herein without allowing him the one day's time provided by section 990 of the Penal Code. Obviously, by the procedure adopted by the trial court in this case, no time was given appellant's counsel to consider the amended indictment to determine whether or not a plea should be entered, or a demurrer presented, or motion made to set aside the information, all of which rights the accused is granted by law.

Not only was appellant compelled to plead instanter, but he was also deprived of the right granted by section 1049 of the Penal Code allowing him at least five days after his plea to prepare for trial. The situation is not remedied by the circumstances of the case, as indicated by the trial court's remark that the new matter in the information “is a matter of record and lies entirely within defendant's own knowledge.” As was observed by the Colorado supreme court in Powers v. People, 53 Colo. 43, 123 P. 642, 643: “A defendant should always be afforded a reasonable opportunity to prepare for trial, and a failure to afford this right is neither consonant with a sense of justice nor a fair and impartial administration of the law.” Certainly it cannot be said that a reasonable opportunity is afforded an accused to plead and prepare for trial if he is deprived of the minimum time allotted by law.

Appellant earnestly contends that the trial court committed prejudicial error in refusing to instruct the jury that the testimony given by himself at the trial of his son should be considered in its entirety, while at the same time instructing the jury that if any of the matters testified to were false the defendant should be convicted. Our conclusion that the judgment must be reversed for the reasons above set forth makes it unnecessary to discuss the instructions.

The judgment and order denying a new trial are reversed.

GOULD, Justice pro tem.

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