People v. O'Brien

28 P. 59, 64 Cal. 53, 1883 Cal. LEXIS 562

• Court: California Supreme Court
• Decided: July 28, 1883
• Status: Published

Opinion

.Sharpstein,

The indictment charges the defendant with grand larceny, and then alleges a previous conviction of a similar offense, winding up with the words “ contrary to the form, force, and effect of the statute.” etc. Counsel for appellant suggests that as these words directly follow the allegation of a prior conviction, which follows the clause containing the charge on which he was tried, there is a material departure from the form prescribed in the Code.

Any defect or imperfection in matter of form, and that relied on here is nothing more, which does not tend to the prejudice, which this defect does not, of a substantial right of the defendant upon the merits, does not render the indictment insufficient, nor affect the trial, judgment, or other proceedings thereon. (Pen. Code, § 960.)

The Code provides that an indictment may be substantially in a given form. But the pleader is not limited to that form, although we would advise a strict compliance with it; particularly in a matter of form, such as the concluding stereotyped phrase which, in this instance, the pleader seems to have misplaced.

Judgment and orders affirmed.

Thornton, J., and Myrick, J., concurred.