Opinion
17 Cal. 333 at 335.
Original Opinion of January 1860, Reported at: 17 Cal. 333.
JUDGES: A rehearing having been granted and the case resubmitted, the opinion of the Court was delivered by Cope, J. Field, C. J. and Baldwin, J. concurring.
OPINION
COPE, Judge
A rehearing having been granted and the case resubmitted, the opinion of the Court was delivered by Cope, J.--Field, C. J. and Baldwin, J. concurring. In our former opinion in this case we overlooked the two hundred and forty-third section of the Criminal Practice Act, which reads as follows: " When an offense involves the commission, or an attempt to commit private injury, and 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 deemed material." It is contended by the defendant that the effect of this section was to render the variance between the proof and the indictment immaterial; but we think that such is not the proper construction. It is only where there are other circumstances sufficient to identify the offense, that the statute was intended to operate. There are no such circumstances in this case, and to hold that the defendant could have been convicted notwithstanding the variance, would be to hold that he might have been convicted of an offense different from that charged in the indictment.
Judgment affirmed.