People v. Potter, Cal., Judgment, Law, casemine.com

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Attorney(S)

Jo Hamilton, Attorney General, for the People. F. E. Spencer, for Respondent.

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Smart Summary

Factual and Procedural Background

The defendant, Joel C. Potter, was indicted by the Grand Jury of Santa Clara County for embezzlement of funds belonging to the City of San Jose. The indictment alleged that Potter, while acting as the City Marshal of San Jose, was entrusted with certain United States gold coins belonging to the city and that he feloniously embezzled these funds. The defendant filed a demurrer to the indictment, which the County Court sustained, resulting in a judgment against the People. The People appealed this judgment.

Legal Issues Presented

Whether a misnomer in the name of the corporate entity alleged to be the victim of embezzlement is fatal to the indictment.
Whether the indictment sufficiently alleges that the defendant was a servant, officer, or employee of the municipal corporation, as required to constitute the crime of embezzlement.

Arguments of the Parties

Appellant's Arguments (People)

The misnomer of the corporate name in the indictment is not fatal because the statute under which the city was incorporated is a public statute, and the identity of the corporate entity is clear despite the variance.
The indictment sufficiently alleges the defendant's official capacity as City Marshal, which is equivalent to alleging he was an officer of the corporation, satisfying the requirement that the defendant be an officer or employee of the municipal corporation.

Respondent's Arguments (Defendant)

The indictment is fatally defective due to the misnomer of the corporate body whose money was allegedly embezzled.
The indictment fails to state facts sufficient to constitute a criminal offense because it does not explicitly allege that the defendant was a servant, officer, or employee of the municipal corporation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gorham v. Springfield, 21 Maine 58	Recognition that incorporation statutes are public statutes of which courts must take judicial notice.	Used to support that the court must recognize the statute incorporating the City of San Jose and its proper corporate name.
McNeally's Case, 17 Cal. 332, 336	Variance in the name of the person injured in an indictment is fatal if the act is not otherwise sufficiently identified.	Distinguished to show that in this case the identity of the corporate victim was sufficiently clear despite the misnomer.

Court's Reasoning and Analysis

The court addressed two main points raised in the demurrer. First, the court acknowledged that the indictment incorrectly named the corporate entity as the "City of San Jose" instead of its formal corporate name, "The Mayor and Common Council of the City of San Jose," as established by the incorporation statute. However, the court found that this misnomer was not fatal because the statute is a public act of which the court must take notice, and the identity of the corporate entity was sufficiently clear to protect the defendant against future prosecutions for the same act. The court explained that the purpose of requiring correct naming at common law was to prevent double jeopardy, but the state statute modifies this rule by allowing an erroneous allegation as to the injured party to be immaterial if the offense is otherwise described with sufficient certainty.

Second, the court considered whether the indictment sufficiently alleged that Potter was an officer or employee of the municipal corporation. It held that while it is necessary to allege that the defendant was a servant, officer, or employee, it is not required to use those precise words. Since the indictment averred that Potter was the City Marshal—a public officer recognized by the city's incorporation statute—the court concluded that this allegation sufficiently conveyed the defendant's official capacity.

Accordingly, the court found both points of the demurrer untenable and held that the trial court erred in sustaining the demurrer to the indictment.

Holding and Implications

The judgment sustaining the demurrer to the indictment is reversed, and the cause is remanded for further proceedings.

This decision directly reinstates the indictment against the defendant, allowing the prosecution to proceed. No new legal precedent beyond the application of existing statutory modifications to common law rules is established.

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THE PEOPLE OF THE STATE OF CALIFORNIA v. JOEL C. POTTER

JUDGES: Sanderson, J. Mr. Justice Rhodes expressed no opinion.

OPINION

SANDERSON, Judge

Two points are made in support of the demurrer to the indictment:

First, That there is a misnomer of the corporate body, whose money is alleged to have been embezzled by the defendant, and that such misnomer is fatal.

Second, That the indictment does not state facts sufficient to constitute a criminal offense, because it is not alleged that the defendant was either a servant, or officer, or person employed in any public department of the corporate body whose money he is alleged to have embezzled.

Ordinarily, the first point would not arise upon demurrer to the indictment, but upon demurrer to the evidence. The statute, however, by which the City of San Jose was incorporated is a public statute, (Gorham v. Springfield, 21 Maine, 58), of which we are bound to take notice. By the the second section of that statute the corporate name of the city declared to be " The Mayor and Common Council of the City of San Jose." In the indictment the name of the corporation is declared to be the " City of San Jose." It is very clear that the name of the owner of the money alleged to have been embezzled is wrongly stated in the indictment, but it does not necessarily follow that the indictment is bad.

At common law, a substantial variance between the name of the party injured or intended to be injured, as laid in the indictment and as given in evidence, is fatal; but we consider that this rule has been materially modified by the statute of this State, in relation to practice in criminal actions, which provides that where the offense charged in the indictment is described with sufficient certainty in other respects, to identify the act, an erroneous allegation as to the person injured, or intended to be injured, shall not be material. (Sec. 243.)

The rule at common law was adopted for the protection of the defendant against a second prosecution for the same criminal act, which protection can be secured only by requiring the act to be so described in the indictment as to admit of no mistake in the future as to its identity; and to that end it was considered most material that the name of the person injured, or intended to be injured by the alleged criminal act or intent, should be correctly laid in the indictment. The Legislature of this State however, have assumed that cases may arise in which the act charged may be described with sufficient certainty for the protection of the defendant, notwithstanding a mistake may have been made as to the name of the party injured, or intended to be injured, and therefore, have provided, that in all such cases the mistake shall not be deemed material.

We think the defendant cannot be prejudiced by the mistake in question. The indictment alleges that the person injured is a municipal corporation in the County of Santa Clara, in the State of California, under and by virtue of certain statutes of this State, which are referred to by title.

On turning to those statutes we find them entitled Acts to incorporate the " City of San Jose," which is the name used in the indictment. The first section describes a certain tract of land situated in Santa Clara County, " now called the City of San Jose; " and, after giving its boundaries, declares that it shall henceforth be known as the " City of San Jose." The second section provides a government for said city, and declares that it shall be a body politic and corporate by the name and style of " The Mayor and Common Council of the City of San Jose." Thus it turns out that the very means invoked by the defendant to show the misnomer proves too much, for it leaves no doubt as to who is intended to be designated as the party injured by his act, and, therefore, as to the identity of the act itself.

There are cases where the description of the act will be insufficient on the score of identity, unless the true name is given. Of such was McNeally's Case. (17 Cal. 332, 336.) The defendant was indicted for an assault with a deadly weapon upon one Sin Groon. The testimony showed that the true man was Lin Groon, and it was held that the variance was fatal, because the other circumstances in the case did not of themselves sufficiently identify the act.

The second point is also untenable. In charging an offense it is not necessary to follow strictly the language of the statute by which it is defined. Words conveying the same meaning may be used. (Crim. Prac. Act, Sec. 245.)

To complete the offense charged, it must undoubtedly be alleged that the defendant was at the time a servant, or officer, or person in the employment of some department of the city government; but it is not necessary that those precise words should be used. The act incorporating the city declares that " the city government shall be vested in a Mayor, a Common Council consisting of six members, a City Marshal, a City Clerk, and a City Treasurer." This Act, as already suggested, is a public act, of which we must take notice. We must, therefore, know that one of the officers of the city government is a " City Marshal." Hence, the averment in the indictment that the defendant was, at the time the act charged was committed, " the City Marshal," conveys the same meaning as the averment, that " he was an officer of the corporation, to wit: City Marshal."

The court below erred in sustaining the demurrer. Judgment reversed and cause remanded for further proceedings.

People v. Potter