People v. Kloss

The facts in this case are practically identical with a part of the facts in the case of People v. Hatfield, 129 Cal. App. 162 [ 18 Pac. (2d) 366 ]. The

The main ground urged for reversal, which we think must be sustained, is that the information does not state facts sufficient to constitute a public offense. The charging part of the information reads as follows: “The District Attorney of the County of Imperial hereby accuses Robert Kloss and John Williams of a felony, to-wit: Violation of Section 32 of the Penal Code of California, to-wit: Accessories after the fact, in that on or about the 10th day of May, 1932, in the County of Imperial, State of California, the said defendants, Robert Kloss and John Williams, who, after having full knowledge that a felony had been committed, the said defendants, Robert Kloss and John Williams, did then and there conceal and harbor the person committing said felony from the magistrate. ’ ’

■Section 32 of the Penal Code, upon which this charge is based, reads as follows: “Who are accessories. All persons, who after full knowledge that a felony has been committed, conceal it from the magistrate, or harbor and protect the person charged with or convicted thereof, are accessories. ’ ’

Section 32 of the Penal Code sets forth two ways in which the offense there involved may be committed: First, where with full knowledge that a felony has been committed, the crime or the fact of its commission is concealed from the magistrate; second, where with full knowledge that a felony has been committed, the person charged with or convicted thereof is harbored and protected. Without question, a defendant could be charged with committing either one or both of these offenses. Neither of these offenses necessarily involves the other and each of them naturally rests upon acts and circumstances at variance with those unon which the other is based.

* In the instant case, some of the elements of each offense are charged but the charge does not include all of the ele

While the offense described in section 32 of the Penal Code may be committed in either of these two ways, it is impossible to say in which of these ways these defendants are charged to have committed the offense. In fact we think they are not charged with any offense at all and that the purported information is void and of no effect. Section 952 of the Penal Code provides that the statement charging an offense may be in the language of the statute “or in any words sufficient to give the accused notice of the offense of which he is accused”. In the case before us, there is not merely a slight deviation or trivial omission but there is an absolute failure to either follow the language of the statute or to give any notice to the accused sufficient to enable him to tell with which offense he is charged.

Nor do we think we can say there has been no miscarriage of justice within the meaning of section 4% of article YI of

While the enactment of this provision has led to a great liberality, and rightly so in many cases, it can hardly be said that there has been no miscarriage of justice when a defendant is forced to trial upon an information where neither he nor the court can tell with which of two offenses he is charged, and where the language of the statute is not followed, especially where the requirements of the statute, in defining the elements necessary to be charged, are plain, simple and easily complied with.

It has frequently been held that it cannot be said that there is no miscarriage of justice where the reviewing court cannot determine from the record whether or not the defendant would have been convicted, had not the error sought to be excused by this provision of the Constitution been committed. (People v. Van Cleave, 208 Cal. 295 [ 280 Pac. 983 ]; People v. O’Bryan, supra; People v. Sheffield, 108 Cal. App. 721 [ 293 Pac. 72 , 77]; People v. MacPhee, 26 Cal. App. 218 [ 146 Pac. 522 ].) We are unable to say what the jury might have done in this case had the charge been clear and definite. This depends upon which offense was actually charged. Obviously it was not intended to charge both offenses. If the first was charged the evidence would justify a conviction, and if the second, the reverse is true. The jury may have found the defendants guilty of the second offense, this being the one the information seems to be attempting to allege, in which case the evidence does not sustain the verdict. On the other hand the jury may have

The judgment and order appealed from are reversed.

Marks, J., and Jennings, J., concurred.