PEOPLE v. TALLMAN (1945)

In an amended information filed by the District Attorney of Los Angeles County, containing six counts, the defendant was accused in counts 1 and 4 of the offense of assault with intent to commit rape; counts 2 and 5 charged the crime of attempted rape; while counts 3 and 6 alleged that the defendant committed the crime of assault by means of force likely to produce great bodily injury. Following the entry of not guilty pleas to all counts of the information, trial before a jury resulted in the acquittal of defendant as to all of the offenses charged, but he was convicted of two counts of simple assault, a misdemeanor, lesser but necessarily included offenses in the crimes charged in counts three and six of the information. Motions for a new trial and in arrest of judgment were made and denied, followed by the pronouncement of judgment. From the judgment, order denying new trial, sentence, and the order denying the motion in arrest of judgment, defendant prosecutes this appeal.

An epitome of the evidence revealed by the record shows that, at about 9 o'clock on the morning of November 8, 1943, the prosecutrix named in counts 1, 2 and 3, a high school student, fourteen years of age, on her way to class, alighted from a bus and walked in a westerly direction along the north side of Wilshire Boulevard in the City of Los Angeles to a point where there was an opening into the southeast corner of the school grounds between the end of a hedge, which parallels the south line of the school area on Wilshire Boulevard, and an iron fence that runs along the east line of the school grounds, and which opening was commonly referred to by the students as ‘the hole in the hedge’, opening into what was commonly known as the bicycle path. As she was walking along Wilshire Boulevard, the prosecutrix observed a man, later identified by her as the defendant, walking in a westerly direction about ten feet ahead of her; as he ‘was on top of the hump between the hedge and the fence, he turned and looked towards me’; he thereupon continued on through the opening into the grounds. The prosecutrix walked through the opening and passed the defendant. He caught up with her and ‘grabbed’ her. She testified that he put his left hand around in front of her, up underneath her skirt, and with his right hand he reached up under her skirt from the back, placing his hands both on her body and her private parts underneath her skirt and on the outside of her underpants. According to the testimony of the prosecutrix, the defendant moved his fingers in a ‘clawing’ manner and ‘sort of kept going’ and ‘did not stop’, was mumbling to himself and saying ‘come on’. The prosecutrix pulled herself away and started to run. She testified the episode lasted about one second. She did not see the man again and did not know where he went. A boy passed her on a bicycle after she had gone about 20 feet from the scene. She did not scream at any time and did not drop her books or her lunch, which she was carrying in her hands. The girl testified that the visibility was good on that day, that the defendant was wearing a blue striped sport coat, blue slacks and was hatless. Later on in the day, the prosecutrix telephoned her mother and made complaint of the occurrence.

On the following morning, at about the same hour of 9 o'clock, two other school girls were walking together on their way to the same school and while crossing in the safety cross walk to the north side of Wilshire Boulevard, an automobile which was driven south on June Street turned west on Wilshire. Immediately thereafter the driver of this automobile parked the same on the north side of Wilshire Boulevard a little to the west of the ‘hole in the hedge’, the driver got out and went through the ‘hole in the hedge’ about four feet ahead of the aforesaid two girls. The driver of this car was also later identified as the defendant. He stood about three feet inside the hedge and by a tree near the entrance to the grounds. As the girls proceeded through the school grounds, the defendant walked up to one of them, placed his left hand on her leg, and, to use her language in testifying, ‘he used his hand and started running it up my leg, so I pushed him away with my books and I started to scream, and I backed away and he went away from me and started toward Phyllis, and Phyllis ran back and I did not see what happened’. The girl who was accosted by the defendant screamed very loudly and testified she heard him ‘mumbling to himself, sort of like ‘come with me, young lady”. She testified she got a good look at the defendant and when he placed his hand on her left leg about half way up above her knee she pushed him very hard, kicked at him and thereby freed his hand from her leg. Thereupon the defendant ran over to the girl's companion, did not touch the latter, but, according to the prosecutrix, he ‘very calmly walked out’. The companion of the prosecutrix went over to the hedge to observe where the defendant was going, saw him get into an automobile, noticed the license number and repeated the same numerous times in a loud tone of voice while the prosecutrix wrote it down on the cover of her science book. In this connection it might here be noted that there was testimony in behalf of the defendant with reference to the thickness of the hedge and the difficulty in reading a license number under the circumstances testified to by the girl who obtained it. There was also testimony that the license plate on the defendant's car was so bent as to make reading of the last number on the same difficult. While the prosecutrix testified that the license plate was in the center of the automobile which she observed, there was testimony showing that the license plate on the defendant's car was located on the left hand side thereof. The two girls aforesaid then went to school where they related their experience to their teachers, the latter of whom reported the matter to the police. Two of the girls' school teachers corroborated their testimony to the effect that they made complaint of what had happened to them and, with reference to their appearance at the time of making such complaint immediately upon their arrival at the school, one of the teachers testified, ‘Well, their eyes were staring and I noticed particularly Phyllis, her breath and her eyes were excited, and they were talking very, very fast and seemed to be in a great state of perturbation, so much so that I was forced to stop and see what was the matter with them’. The vice-principal of the school described one of the girls as ‘pale and tense’ and the other as being ‘eager to talk about the occurrence’.

Fortified with information given them at the school by the three girls herein referred to, police officers arrested the defendant and on November 11th the girls in question appeared at the police station at which time the defendant was lined up with three other men and the girls were asked to identify, if they could, any of the four men as the one whom they had previously seen on the school grounds. Upon this occasion, the three girls identified the defendant, and two of them identified his automobile as the vehicle he was driving on the morning of November 8th.

The defendant testified that he had never been on the school grounds prior to November 11th; that he had never been near the hedge or the ‘hole in the hedge’; that he appeared in the so-called ‘police line up’, was placed at the end of the line and that the other three men were police officers. As to both the mornings of November 8th and 9th, the defendant produced a service station operator who testified that the former was at his service station at approximately 8:45 a.m. to get oil and gas and that the defenant stayed there for some time before leaving. As to the morning of November 8th, another witness who was a customer at the service station corroborated the attendant's testimony in regard to the defendant's presence at the station. This witness had never known or seen the defendant prior to this time. An employee of the postoffice testified that the defendant called there between 9 and 9:30 a.m. on November 8th to send a parcel to Canada. This witness also testified that the defendant had to stand in line for a considerable length of time in order to make arrangements for custom payments. Defendant's employer testified that on the morning in question he had given the defendant a package to be taken to the postoffice for mailing to Canada, and further testified that on the morning of November 8th, defendant arrived at his place of employment between 9:25 and 9:40 a.m., and that on November 9th, the defendant arrived inside the building where he was employed at 9:02 a.m., having already parked his car. The place of defendant's employment was located on Sunset Boulevard, some distance away from the scene of the events which gave rise to this prosecution. The evidence was in conflict as to the time it would require to travel the distance set out in the defendant's alibi, but the most rapid time was 14 minutes as testified to by police officers who had driven over the route taken by the defendant according to his testimony. With reference to the condition of the license plate on the rear of the defendant's automobile, his wife testified the same was bent and had been ever since they purchased the car, while the former owner of the vehicle also testified that it was necessary to bend the license plate in order to get to the gas cap and fill the gas tank.

As a first ground of appeal it is urged that reversible error was committed by the trial court when the defendant was compelled to plead to the amended information. In that regard, the record discloses that, following a preliminary examination wherein the defendant was held to answer on two counts of assault with intent to commit rape, the District Attorney, on December 8, 1943, filed in the Superior Court an information charging the commission by the defendant of said offenses. Upon his arraignment on December 10th, the defendant pleaded not guilty to both counts and trial thereon was set for February 7, 1944. At a later date the trial was continued to March 27th. On the last mentioned date and before the commencement of the trial, the District Attorney announced that he was filing an amended information. With leave of court and over the objection of the defendant, the amended information was filed, containing the six counts hereinbefore set forth; and the defendant entered his plea of not guilty to all counts, at the same time denying the truth of the prior conviction of a felony as charged in the amended pleading, but which denial was later withdrawn and the prior conviction admitted. Upon affidavit that defendant's counsel was engaged in another court the trial was continued to the next day, at which time a jury was impaneled, sworn, and the cause proceeded to trial. Following his conviction, the defendant made a motion for a new trial and in arrest of judgment on the ground ‘that the court is without jurisdiction, in that the code permits an amendment of the information only to the extent that such an amendment charges an offense within the evidence at the preliminary examination’. Thereupon the court asked for and received a transcript of the testimony adduced at the preliminary examination, which was on motion of the defendant received in evidence and marked as ‘an exhibits produced on motion for new trial’. Both motions were submitted and on the day following the court announced: ‘I have read the transcript of the preliminary hearing, and I now deny the motion for arrest of judgment and deny the motion for new trial.’

In view of the fact that the defendant was acquitted on counts 2 and 4 of the amended information he was not prejudiced by the amendments therein contained, and we shall concern ourselves only with the legality of counts 3 and 6 of the amended pleading, upon which counts the defendant was convicted on two counts of simple assault, lesser but necessarily included offenses. The defendant's rights in a case of this kind are statutory. Section 8, Article I, of the Constitution of California, provides that offenses ‘shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment * * *’. In 1911, section 1008 of the Penal Code, which defines the right and power of the District Attorney to file an amended information in a pending criminal proceeding, was amended by addition of the proviso that an information could not be amended so as to charge an offense not shown by the evidence taken at the preliminary examination. The clear purpose and intent of these Code provisions is to guarantee the accused a preliminary hearing before a committing magistrate, and to preclude the District Attorney from forcing one accused of crime to trial before a jury upon an amended information which charges an offense ‘not shown by the evidence taken at the preliminary examination.’ People v. Wright, 26 Cal.App.2d 197, 209, 79 P.2d 102; People v. Shutler, 15 Cal.App.2d 704, 706, 59 P.2d 1050; Mitchell v. Superior Court, 76 Cal.App. 734, 736, 245 P. 1109. Section 809 of the Penal Code, which enjoins upon the District Attorney the duty of filing an information within fifteen days after the defendant has been examined and committed as provided in Section 872 of the same Code, specifically limits the power of the District Attorney to charge only the offense or offenses named in the order of commitment, or any other offense or offenses ‘shown by the evidence taken before the magistrate to have been committed’. It therefore follows that, if by counts 3 and 6 of the amended information herein the District Attorney sought to charge offenses not shown by the evidence taken at the preliminary examination, the court was without jurisdiction to try the defendant thereon because the unauthorized amended information operated to arrest the power of the trial court to proceed to trial. Note, 101 A.L.R. p. 1259. The question presented for determination is whether a violation of section 245 of the Penal Code was ‘shown by the evidence taken at the preliminary examination’.

As to count 3, the testimony of the complaining witness at the preliminary examination was as follows:

‘Q. Did anything unusual occur about that time? A. Yes. I got off the bus at June, and I was walking towards that bike entrance, and I saw a man turn in this entrance, I think he was going the same direction I was, and just sort of turned in. As he went up on the hump there he turned, looking towards me. I just looked at him, and I thought he was going to ask me something, because when I went into the yard, it comes down on a level, and he was right on the level, and he turned to me, sort of hesitant, and I thought he was going to ask me something.

‘Q. That person is here in the court room, is he? A. Yes.

‘Q. Which one is he? A. Right there (pointing).

‘Q. Pointing to the second one at the counsel table, the defendant in this case? A. Yes.

‘Q. How far was he from you when he hesitated, and you thought he was going to ask you something? A. I was just coming over the hump, and he was maybe ten feet down on to the level; but I was in a hurry, because I was going to be late, and I went on up the fence here on that slope where that path is, and I was hurrying along the path there, and I got maybe twenty feet along the path, and he came up on to the path behind me, quite a ways, but he came up on the hump that leads to the fence here, and he was walking fast, and I was too, I thought I was going to be late. And he took two running steps, I thought he was just in a hurry, and all of a sudden he just caught up with me.

‘Q. What did he do when he caught up to you? A. I don't know, he came up behind me, and he grabbed me.

‘Q. Where did he grab you? A. Well, he came up behind me, and he put his arm around this way (indicating), and the other one around back of me, and sort of grabbed me there.

‘Q. Will you tell us just where he grabbed you? A. Right between my legs.

‘Q. And which hand did he place there? A. He had both. I am not sure which hand came around in front, but he had both; one in front and one in the back. He was sort of at the side like this (indicating), and I guess it was this left hand, I am not sure.

‘Q. He put both hands between your legs? A. Yes.

‘Q. What did he do when he had his hands there, if anything? A. He seemed to be going like this (indicating).

‘Q. Indicating kind of a clawing motion with the right hand. How long did he keep his hands in that position? A. Well, when he caught me I didn't even know what was happening, and by the time I sort of turned then, it wasn't very long before I broke away, it seems, at the same time he did, and I ran down the hump there, and I guess he went out again.

‘Q. You didn't see him after that? A. No, I didn't even look back.

‘Q. Did he say anything? A. He was sort of mumbling while he was doing it. The only thing I could ever understand was ‘Come on.’

‘Q. Did you say anything to him? A. Well, after he asked me, I didn't even know what was happening, and by the time I turned around I sort of said, ‘What?’ I was so startled I didn't know what was happening.'

Concerning count 6, the material testimony of the prosecutrix at the preliminary examination reads:

‘Q. Tell us what happened. A. The defendant came up to me and he put his hand on my leg, on my left leg and started to run his hand up my leg.

‘Q. Which hand did he start to run up your leg? A. His left hand.

‘Q. And where was his right hand at this time, do you know? A. Just by his side.

‘Q. Did he say anything to you? A. Well, from what I gathered, I started to scream right away, but he said something on the order of ‘Come on with me.’

‘Q. And what did you do? A. Well, I exerted force and pushed him away and screamed.

‘Q. And what force did you exert? Just what did you do exactly? A. Well, I sort of kicked him and pushed, and stepped back.

‘Q. And what did he do then? A. Well, as soon as I stepped back from him, he ran towards this other girl I was with.

‘Q. Ran towards her? A. Yes.

‘Q. And where was she in relation to you at that time? A. She was about five feet to the left of me.

‘Q. And what did she do when he started to run towards her? A. I didn't notice.

‘Q. Did he touch her? A. I didn't notice.

‘Q. Were you looking at that time? What were you doing at the time he was running towards her? A. I was sort of looking at him, but I was not thinking of what he was doing, I was just looking at him, I wasn't watching him.

‘Q. What happened from then one? A. Then I noticed that he just very calmly walked out.’

That the conduct just detailed constituted an assault or battery, as defined by Sections 240 and 242 of the Penal Code, cannot be questioned, but every assault does not constitute a violation of Section 245 of the Penal Code. To hold otherwise would completely emasculate the provisions of Sections 240 and 242, and certainly such was not the intention of the Legislature in enacting Section 245. We have read many cases involving the construction of Section 245 of the Penal Code, including People v. Hinshaw, 194 Cal. 1, 227 P. 156; People v. Kimmerle, 90 Cal.App. 186, 265 P. 525; People v. Nude, 38 Cal.App.2d 381, 101 P.2d 162; People v. Bumbaugh, 48 Cal.App.2d 791, 120 P.2d 703; and People v. McIlvain, 55 Cal.App.2d 322, 130 P.2d 131. While undoubtedly it is the law that Section 245 of the Penal Code may be violated by an assault committed with the hands or fists, nevertheless, in all of the cases upholding a conviction under Section 245 when the attack was made with the hands or fists the assault or battery proven was of such a violent nature that either much physical suffering ensued therefrom or it could reasonably be assumed from the manner of, as well as the means used to perpetrate the attack, that a felonious assault within the meaning of Section 245 of the Penal Code was committed. While it is not necessary in order to complete the offense to show that the defendant actually injured his intended victim, there must, nevertheless, have been an attempt to strike with or to use a deadly weapon or other means likely to produce great bodily injury. We deem it a fair statement of the law to say that a crime is committed under Section 245 of the Penal Code, as distinguished from the misdemenors defined by Sections 240 and 242 of the same Code, when it is shown by the evidence that there is likelihood of great bodily injury as a result of the force used or attempted to be used. It is the manner in which the force is used that is important and not so much the degree thereof, because, as was said in People v. McIlvain, supra, 55 Cal.App.2d at page 331, 130 P.2d 136, ‘A slight blow on the eye might be far more injurious than a severe blow in the back’. From the manner in which the force was used in the instant case, we are persuaded that it cannot be held that the same was ‘likely to produce great bodily injury.’ We are not unmindful of respondent's contention that the evidence before a committing magistrate at a preliminary examination need not be such as would require a conviction and that only ‘reasonable and probable cause’ to believe that a crime has been committed and that the accused is guilty thereof will suffice, but in the instant case we find no evidence produced at the preliminary examination of facts that would ‘lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong supicion of the guilt of the accused’, People v. Nagle, 25 Cal.2d 216, 153 P.2d 344, 347, of a violation of Section 245 of the Penal Code, or any other assault of which the Superior Court had jurisdiction. Therefore, in filing counts 3 and 6 of the amended information the District Attorney was attempting to charge offenses not shown by the evidence taken at the preliminary examination. This he cannot do, and his attempt in that regard does not confer upon the trial court any jurisdiction to try the defendant upon such a pleading, or to impose a judgment after conviction thereon. As was said in People v. Fyfe, 102 Cal.App. 549, 555, 283 P. 378, 380: ‘The procedure followed in this case is concrete evidence of the purpose and wisdom of the provisions of section 1008, Penal Code, which expressly prohibit an amendment to an information which would prejudice the substantial rights of the defendant. In declaring that an information ‘cannot’ be amended so as to charge an offense not shown by the evidence taken at the preliminary examination the terms of the section are mandatory. They are in whole harmony with the provisions of section 8 of article 1 of the Constitution requiring an examination and commitment by a magistrate as a prerequisite to the filing of an information by the district attorney.'

Respondent contends, however, that, because appellant failed to attack the amended information by motion as provided for in Section 995 of the Penal Code, he is estopped from raising the issue at this stage of the proceeding by reason of the provisions of Section 996 of the same Code. Subdivision 2 of Section 995, provides that an information must be set aside by the court in which the defendant is arraigned upon his motion if ‘the defendant had been committed without reasonable or probable cause’, while Section 996 provides in substance that if the foregoing motion to set aside the information is not made ‘the defendant is precluded from afterwards taking the objections mentioned in the last section’. But, in the case at bar, we are not concerned with the original information, but with two counts of an amended information, upon which there never was any preliminary examination or commitment by a magistrate. Manifestly, it was impossible for the defendant to avail himself of the provisions of Section 995, because the phrases ‘legally committed’ and ‘committed’ refer to the examination by the magistrate and holding the defendant to answer by the magistrate. People v. Beach, 122 Cal. 37, 38, 54 P. 369. Moreover, as heretofore pointed out, the provisions of section 1008 of the Penal Code permitting the filing of an amended information to charge only offenses shown by the evidence taken at the preliminary examination are mandatory. It therefore follows that the error committed by the trial court in allowing the amended information to be filed over the objection and exception of the defendant was jurisdictional in character. Although a defendant who fails to make a motion to set aside the information (Penal Code, § 995) is precluded from afterwards raising the objection which may be so taken (Penal Code, § 996), he may, nevertheless, assert his objection to the jurisdiction of the court over the subject of the information or to the sufficiency of the facts to constitute a public offense, at the trial under his plea of not guilty, after the trial by motion in arrest of judgment, or upon appeal. 14 Cal.Jur. §§ 66, 87; People v. Kinsley, 118 Cal.App. 593, 596, 5 P.2d 938. We are not here confronted with a question of the sufficiency of the pleading to charge a public offense against the defendant, but the sole question upon which we pass is whether the amended information pleaded offenses not shown by the evidence adduced at the preliminary examination; was filed contrary to the provisions of the Code, and that there was therefore no information before the court upon which the defendant could be tried. Having determined that question adversely to respondent's contentions, it follows that the judgment rendered cannot stand.

The foregoing conclusion at which we have arrived renders it unnecessary to consider other grounds urged by appellant for a reversal.

The attempted appeal from the order denying the motion in arrest of judgment is dismissed (Penal Code, § 1237), as is the attempted appeal from the sentence. The judgment and the order denying defendant's motion for a new trial are and each is reversed.

WHITE, Justice.

DORAN, J., concurs. YORK, P. J., dissents.