Opinion
Crim. No. 688.
September 17, 1917.
APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. H. Z. Austin, Judge.
The facts are stated in the opinion of the court.
Henry Brickley, and Frank A. Curtin, for Appellant.
U.S. Webb, Attorney-General, and John H. Riordan, Deputy Attorney-General, for Respondent.
It is only necessary to say in this case that the original information purported to charge a public offense, and that the amended information as filed, after the request of the district attorney and upon the permission of the court being given, did not charge an offense different from that attempted to be stated in the original information. Consequently the filing of the amended complaint neither prejudiced the defendant nor contravened the provisions of section 1008 of the Penal Code. (See People v. Rippe, 32 Cal.App. 514, [ 163 P. 506].)
The record does not sustain the contention of counsel for the defendant that the trial court refused to permit him to show upon cross-examination of the complaining witness that the latter was so drunk on the night of the assault with which the defendant is charged as not to be able to identify the defendant as one of the persons who assaulted him. That is all we think need be said as to that assignment of error.
No other point in the case requires discussion, and we are satisfied that the evidence sustains the verdict and judgment. The judgment and order denying defendant's motion for a new trial are affirmed.