Shutler

Shinn, J., pro tem.

Defendant appeals from a judgment of conviction of violation of section 288 of the Penal Code.

By complaint filed in the municipal court, defendant was charged in separate counts with the crimes of kidnaping, rape and violation of section 288 of the Penal Code. He was committed only upon the charges of kidnaping and rape, was charged with those crimes by information, and entered a plea of not guilty. At the commencement of trial the district attorney, with leave of court, filed an amended information accusing the defendant of the additional crime of violation of section 288 of the Penal Code. The crimes were alleged to have been committed upon a single day and the victim of the alleged kidnaping under one of the counts, and the alleged rape, was the same female child named in the added count of the information. He was acquitted of rape and convicted of a violation of section 288 of the Penal Code. The other counts were dismissed.

[1] The first contention on appeal is that the amendment of the information was unauthorized after defendant had entered his plea.

Section 1008 of the Penal Code authorizes the amendment of an information by the district attorney…

Defendant appeals from a judgment of conviction of violation of section 288 of the Penal Code.

By complaint filed in the municipal court, defendant was charged in separate counts with the crimes of kidnaping, rape and violation of section 288 of the Penal Code. He was committed only upon the charges of kidnaping and rape, was charged with those crimes by information, and entered a plea of not guilty. At the commencement of trial the district attorney, with leave of court, filed an amended information accusing the defendant of the additional crime of violation of section 288 of the Penal Code. The crimes were alleged to have been committed upon a single day and the victim of the alleged kidnaping under one of the counts, and the alleged rape, was the same female child named in the added count of the information. He was acquitted of rape and convicted of a violation of section 288 of the Penal Code. The other counts were dismissed.

The first contention on appeal is that the amendment of the information was unauthorized after defendant had entered his plea.

Section 1008 of the Penal Code authorizes the amendment of an information by the district attorney without leave of court…

I dissent; the reason therefor being that in my opinion the foundational statute is unconstitutional.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 27, 1936.