Mayes

Defendant was charged with murder in violation of Penal Code section 187. No other charges were made or specified in the information. Subsequently, the district attorney stipulated that the offense was not murder in the first degree and the cause proceeded to trial on this basis. After jury trial defendant was convicted of a battery. The trial court denied defendant’s motion for a new trial and sentenced him to serve six months in the county jail. Defendant was released on bail and this appeal followed.

At approximately 11 p.m. on October 28, 1966, defendant was in a bar called “Cliff’s Place” in Stanislaus County. At the time he was playing dice with two other men, Rudy Alfaro and the victim, Bob Suguitan. Shortly thereafter the defendant quit the game and one P. L. Pitts took his place. The dice game ended around 12 o’clock midnight with Suguitan the winner of $50 to $60. After the game ended Suguitan began to argue with Pitts and the defendant. A few minutes later the victim left his seat at the bar, and walked to the restroom. Defendant immediately followed, and they apparently entered the restroom together. Defendant was the first to return to the barroom. A moment later the…

I dissent. The defendant was charged in the information with murder; he was convicted of battery, an offense “not necessarily included in the former,” as conceded in the foregoing opinion. It is established beyond cavil in this state that “A person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by "indictment or information, whether or not there was evidence at his trial to show that he had committed that offense” (In re Hess, 45 Cal.2d 171, 174-175 [ 288 P.2d 5 ]). (See also People v. Kennedy, 133 Cal.App.2d 693, 694 [ 284 P.2d 898 ].) I would reverse the judgment.

Defendant was charged with murder in violation of Penal Code section 187. No other charges were made or specified in the information. Subsequently, the district attorney stipulated that the offense was not murder in the first degree and the cause proceeded to trial on this basis. After jury trial defendant was convicted of a battery. The trial court denied defendant's motion for a new trial and sentenced him to serve six months in the county jail. Defendant was released on bail and this appeal followed.

At approximately 11 p.m. on October 28, 1966, defendant was in a bar called "Cliff's Place" in Stanislaus County. At the time he was playing dice with two other men, Rudy Alfaro and the victim, Bob Suguitan. Shortly thereafter the defendant quit the game and one F. L. Pitts took his place. The dice game ended around 12 o'clock midnight with Suguitan the winner of $50 to $60. After the game ended Suguitan began to argue with Pitts and the defendant. A few minutes later the victim left his seat at the bar and walked to the restroom. Defendant immediately followed, and they apparently entered the restroom together. Defendant was the first to return to the barroom. A…