( People v. Gordan (1894) 103 Cal. 568, 575 [37 P. 534]; see Hood, supra, 1 Cal.3d at p. 452, fn. 4.) Notably, none of these decisions, including numerous early opinions of this court, questions this proposition or considers the possibility of a contrary implication in the code commissioners' comments to Penal Code section 240. (See, e.g., People v. Gordan, supra, 103 Cal. at p. 575; People v. Franklin (1886) 70 Cal. 639 [11 P. 790]; People v. Marseiler (1886) 70 Cal. 98, 100 [11 P. 503]; People v. Turner (1884) 65 Cal. 540, 542 [4 P. 53]; see also People v. McMakin, supra, 8 Cal. at p. 548.) Second, characterizing assault as a specific intent crime is inconsistent with the legislative history of assault with a deadly weapon, which at one time included an "intent to do great bodily harm" but was amended by the Legislature to delete that requirement.
When the mere date of a transaction is not material, the variance in proof in that regard is neither prejudicial nor reversible error. ( Amador Gold Mines Co., Ltd., v. Amador Gold Mine, 114 Cal. 346 [46 P. 80]; Bancroft Co. v. Haslett, 106 Cal. 151 [39 P. 602]; Thomas v. Jameson, 77 Cal. 91 [19 P. 177]; Biven v. Bostwick, 70 Cal. 639 [11 P. 790]; Atwood v. Southern Cal. Ice Co., 63 Cal.App. 343, 346 [ 218 P. 283].) When the variance is not material the trial court may direct findings in accordance with the proof as to the fact.
Within that period no variation from the date alleged in the complaint was material. (Norris v. Elliott , 39 Cal. 72; Davis v. Baugh , 59 Cal. 568; Kidder v. Stevens , 60 Cal. 420; Biven v. Bostwick , 70 Cal. 639.) The action was commenced May 7, 1894, and the finding is that defendants entered June 26, 1893.
The variance between the averment of the complaint relative to the time of conversion and the finding thereon is immaterial. (2 Saunders' Pleading and Evidence, 1141; Glenn v. Garrison , 17 N. J. L. 1; Rex v. Bishop, 2 Salk. 561; Gould on Pleading, sec. 65; Biven v. Bostwick , 70 Cal. 639; 1 Greenleaf on Evidence, secs. 61, 63, 65.) After a judgment such an objection is not available.
The defendant now moves this cour t that the judgment be reversed or set aside. [11 P. 790] In Pierson v. McCahill , 23 Cal. 249, it was held, under the provisions of the former practice act, that an appeal from an order refusing to change the place of trial stayed all further proceedings in the court below till the appeal was decided.