People v. Tallman, 163 P.2d 857 (Cal. 1945). · Go Syfert
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People v. Tallman, 163 P.2d 857 (Cal. 1945). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, 1966–2013 · …by any means of force likely to produce great bodily injury. at p. 212 ✓
cited 2× by 1 distinct case, last quoted 1962 · …were offenses against the same girls named in the original information and were predicated upon their testimony as to the same two occurrences which underlay the charges set forth in the original information. at p. 213 ✓
111 citation events (17 in the last 25 years) across 3 distinct courts.
Strongest positive: People v. Townsel (cal, 2016-04-21)
Treatment trajectory · 1946 → 2026 · click a year to view as-of
1946 1986 2026
Top citers, strongest first. 35 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Townsel
Cal. · 2016 · confidence medium
Defendant acknowledges that a ‘“wide latitude is permitted in the cross-examination of an expert witness in all matters tending to test his credibility so that the jury may determine the weight to be given the testimony . . . .” (People v. Tallman (1945) 27 Cal.2d 209, 214 [ 163 P.2d 857 ]; see Evid.
discussed Cited as authority (rule) People v. Whitmer
Cal. Ct. App. · 2014 · confidence medium
(People v. Tallman (1945) 27 Cal.2d 209, 213 [ 163 P.2d 857 ].) Here, however, evidence that the value of each pertinent vehicle exceeded $400 was presented at appellant’s preliminary hearing. 9 People v. Gonda (1982) 138 Cal.App.3d 774 [ 188 Cal.Rptr. 295 ], upon which appellant relies, is inapposite.
discussed Cited as authority (rule) People v. Vang
Cal. Ct. App. · 2010 · confidence medium
(See People v. Tallman (1945) 27 Cal.2d 209, 212 [ 163 P.2d 857 ].) "Although neither physical contact nor injury is required for a conviction, if injuries result, the extent of such injuries and their location are relevant facts for consideration." ( People v. Beasley (2003) 105 Cal.App.4th 1078, 1086 [ 130 Cal.Rptr.2d 717 ].) The question at trial is whether the force was likely to produce great bodily injury, and whether the victim actually suffered harm is immaterial. ( People v. Aguilar (1997) 16 Cal.4th 1023, 1028 [ 68 Cal.Rptr.2d 655 , 945 P.2d 1204 ].) Thus, in People v. Hahn (1956) 14…
discussed Cited as authority (rule) Quinones v. Superior Court
Cal. Ct. App. · 2008 · confidence medium
Charges in Information Limited by Preliminary Hearing Evidence and Magistrate's Findings (2) Although a preliminary hearing is prompted by the filing of a criminal complaint, the complaint does not limit the offenses for which the *1526 magistrate may hold a defendant to answer. "[I]t is not the complaint but the totality of the evidence produced at the preliminary hearing which notifies the defendant of the potential charges he may have to face [at trial]." ( People v. Donnell (1976) 65 Cal.App.3d 227, 233 [ 135 Cal.Rptr. 217 ].) Accordingly, a magistrate may hold the defendant to answer for …
discussed Cited as authority (rule) People v. Gordon (2×)
Cal. Ct. App. · 1985 · confidence medium
(People v. Tallman (1945) 27 Cal.2d 209, 213 [ 163 P.2d 857 ].) An amendment to the information may be made as late as the close of trial if no prejudice is shown.
examined Cited as authority (rule) People v. Coleman (3×) also: Cited "see, e.g."
Cal. · 1985 · confidence medium
(People v. Tallman (1945) 27 Cal.2d 209, 214 [ 163 P.2d 857 ]; see, e.g., People v. Whitmore (1967) 251 Cal.App.2d 359, 366 [ 59 Cal.Rptr. 411 ].) Thus, a broader range of evidence may be properly used on cross-examination to test and diminish the weight to be given the expert opinion than is admissible on direct examination to fortify the opinion.
cited Cited as authority (rule) People v. Villagren
Cal. Ct. App. · 1980 · confidence medium
(People v. Tollman (1945) 27 Cal.2d 209, 213 [ 163 P.2d 857 ].) An amendment to the information may be made as late as the close of trial if no prejudice is shown.
discussed Cited as authority (rule) People v. Clark
Cal. Ct. App. · 1973 · confidence medium
But, subject to the provisions of Penal Code section 739, 3 the infor mation. may go beyond the magistrate’s order if the evidence presented to the magistrate supports such additional charge or charges (People v. Tallman, 27 Cal.2d 209, 214 [ 163 P.2d 857 ]; People v. Azevedo, 218 Cal.App.2d 483, 489 [ 32 Cal.Rptr. 748 ]; People v. Dean, 158 Cal.App.2d 572, 575 [ 322 P.2d 929 ]), including a charge for which the magistrate may have thought the evidence insufficient.
discussed Cited as authority (rule) People v. Rupert
Cal. Ct. App. · 1971 · confidence medium
(People v. Tollman (1945) 27 Cal.2d 209, 212 [ 163 P.2d 857 ]; People v. Chavez (1968) 268 Cal.App.2d 381, 384 [73 Cal. *968 Rptr. 865]; People v. Hamilton (1968) 258 Cal.App.2d 511, 518 [ 65 Cal.Rptr. 803 ].) Lynda McNeal testified that, when she entered her mother’s bedroom to intercept defendant’s knife attack, defendant knocked her to the floor.
discussed Cited as authority (rule) People v. Flowers
Cal. Ct. App. · 1971 · confidence medium
Thus, after plea or demurrer sustained, “. . . (w)hether the prosecution should be permitted to amend an information is a matter within the sound discretion of the trial court and its discretion will not be overruled in the absence of a clear abuse thereof.” (People v. Baldwin, 191 Cal.App.2d 83, 87 [ 12 Cal.Rptr. 365 ], citing People v. Stoddard, 85 Cal.App.2d 130, 138-139 [ 192 P.2d 472 ].) The application of this section to allow an amendment to an information so as to add another offense shown by the evidence at the preliminary hearing has been held not to violate a defendant’s const…
discussed Cited as authority (rule) People v. Muir
Cal. Ct. App. · 1966 · confidence medium
When People v. Fuentes was written it was settled: 1. that the offense in question could be perpetrated by means of the hand alone (People v. Tollman, 27 Cal.2d 209, 212 [ 163 P.2d 857 ] and cases cited therein) and 2. that guilt did not depend on the extent of the injuries suffered by the victim, but on a determination that the force applied was likely to cause great bodily injury (People v. Day, 199 Cal. 78, 85 [ 248 P. 250 ]; People v. Schmidt, 66 Cal.App.2d 253, 256 [ 152 P.2d 1021 ]), although the extent of the injuries suffered is often indicative of the amount of force used.
discussed Cited as authority (rule) People v. Gray
Cal. Ct. App. · 1964 · confidence medium
Defendant argues the evidence does not show the victim sustained “great bodily injuries,” and, further that there was no evidence which shows that the force used by defendant was of the character likely to produce great bodily injury. “ [T]he gist of the offense charged ... is the likelihood of bodily injury as the result of force used and the degree of force used is not as significant as the manner of use. [Citation.] Nor is it required that the injuries be serious. [Citation.] What kind of force is likely to produce great bodily injury is a question of fact for the trial court. [Citati…
discussed Cited as authority (rule) People v. Finley
Cal. Ct. App. · 1963 · confidence medium
Code, § 245), an offense which can be committed by use of the fists or by kicking the victim. (1 Witkin, California Crimes, § 272, p. 256; People v. Tallman, 27 Cal.2d 209, 212 [ 163 P.2d 857 ]; People v. Zankich, 189 Cal.App.2d 54, 69-70 [ 11 Cal.Rptr. 115 ]; People v. Carnavacci, 119 Cal.App.2d 14, 16 [ 258 P.2d 1127 ] ; People v. Hooker, 130 Cal.App.2d 687, 691 [ 279 P.2d 784 ].) But the punishment as prescribed by the statute, section 245, is “imprisonment in the State prison not exceeding ten years, or in a county jail not exceeding one year, or by fine not exceeding five thousand dol…
discussed Cited as authority (rule) People v. Baker
Cal. Ct. App. · 1962 · confidence medium
(Cf. People v. Tallman, 27 Cal.2d 209, 213 [ 163 P.2d 857 ].) Since the defense knew from the beginning that the prosecution was proceeding under the theory that all the defendants acted in concert, they could not truly be said to have been taken by surprise by this amendment.
discussed Cited as authority (rule) People v. Downer (2×)
Cal. · 1962 · confidence medium
And where a complaint charges assault with intent to commit rape, an information can be amended to add counts of attempted rape and assault where the added charges "were offenses against the same girls named in the original information and were predicated upon their testimony as to the same two occurrences which underlay the charges set forth in the original information." ( People v. Tallman, 27 Cal.2d 209, 213 [ 163 P.2d 857 ].) The cases cited by the majority do not announce a different rule.
discussed Cited as authority (rule) People v. Busch
Cal. · 1961 · confidence medium
(People v. Tallman, 27 Cal.2d 209, 214 [ 163 P.2d 857 ].) “ While each hypothesis contained in the question should *875 have some evidence to support it, it is not necessary that the question include a statement of all the evidence in the case.
discussed Cited as authority (rule) People v. Stevens
Cal. Ct. App. · 1959 · confidence medium
(People v. Tallman (1945), 27 Cal.2d 209, 214 [7] [ 163 P.2d 857 ]; People v. Ryan (1956), 140 Cal.App.2d 412, 421 [3] [ 295 P.2d 496 ].) Appellant’s third contention is that the trial court erred in refusing to give defendant’s requested instructions on specific intent.
cited Cited as authority (rule) People v. Wilson
Cal. Ct. App. · 1958 · confidence medium
Thus its refusal was not error (People v. Tollman, 27 Cal.2d 209, 215 [ 163 P.2d 857 ]; People v. Nagle, 25 Cal.2d 216, 225 [ 153 P.2d 344 ]).
discussed Cited as authority (rule) People v. Ryan
Cal. Ct. App. · 1956 · confidence medium
“A wide latitude is permitted in cross-examination of an expert witness in matters tending to test his credibility so that the jury may determine the weight to be given his testimony ...” (People v. Tallman, 27 Cal.2d 209, 214 [ 163 P.2d 857 ].) We think that in this case the prosecutor did not exceed permissible bounds.
cited Cited as authority (rule) People v. Kennedy
Cal. Ct. App. · 1953 · confidence medium
(See People v. Tallman, 27 Cal.2d 209, 215 [ 163 P.2d 857 ].) The judgment is affirmed.
discussed Cited as authority (rule) People v. Gallardo (2×)
Cal. · 1953 · confidence medium
Code, 1237; People v. Tallman, 27 Cal.2d 209, 215 [ 163 P.2d 857 ]; People v. Clark, 106 Cal.App.2d 271, 273 [ 235 P.2d 56 ].) As grounds for reversal defendants contend that the judgments are not supported by substantial evidence and that errors were committed in admitting evidence and instructing the jury.
cited Cited as authority (rule) People v. Gonzales
Cal. Ct. App. · 1953 · confidence medium
Code, § 1237; People v. Tallman, 27 Cal.2d 209, 215 [ 163 P.2d 857 ].) White, P. J., and Doran, J., concurred.
cited Cited as authority (rule) People v. Falk
Cal. Ct. App. · 1952 · confidence medium
Code, § 1237; People v. Tallman, 27 Cal.2d 209, 215 [ 163 P.2d 857 ]).
cited Cited as authority (rule) People v. Darling
Cal. Ct. App. · 1951 · confidence medium
(See People v. Tollman, 27 Cal.2d 209, 215 [ 163 P.2d 857 ].) The judgment and the order denying the motion for a new trial are affirmed.
cited Cited as authority (rule) People v. Hernon
Cal. Ct. App. · 1951 · confidence medium
(See People v. Tallman, 27 Cal.2d 209, 215 [ 163 P.2d 857, 860 ].) The judgment and the order denying the motion for a new trial are affirmed.
cited Cited as authority (rule) People v. Becker
Cal. Ct. App. · 1951 · confidence medium
(See People v. Tallman, 27 Cal.2d 209, 215 [ 163 P.2d 857 ].) The judgment and the order denying the motion for a new trial are affirmed.
cited Cited as authority (rule) People v. King
Cal. Ct. App. · 1950 · confidence medium
(See People v. Tallman, 27 Cal.2d 209, 215 [ 163 P.2d 857 ].) The judgments as to all six counts are affirmed.
discussed Cited as authority (rule) People v. Pullins
Cal. Ct. App. · 1950 · confidence medium
(People *905 v. Day, 199 Cal. 78, 85 [ 248 P. 250 ] ; People v. Tallman, 27 Cal.2d 209, 212 [ 163 P.2d 857 ].) Appellant contends that he did not assault prosecutrix before she struck him and that he acted in self-defense.
discussed Cited as authority (rule) People v. Lindsey
Cal. Ct. App. · 1949 · confidence medium
(People v. Tallman, 27 Cal.2d 209, 215 [ 163 P.2d 857 ].) The facts are these: On August 10, 1948, at 3:50 a. m., a police officer in civilian clothes entered the premises at 2800 North Figueroa Street, Los Angeles.
discussed Cited as authority (rule) People v. Raze
Cal. Ct. App. · 1949 · confidence medium
(People v. Tollman, 27 Cal.2d 209, 215 [ 163 P.2d 857 ].) On August 10, 1948, a police officer in civilian clothes entered the premises at 2800 North Figueroa Street, Los Angeles, which is a poolroom and bar.
cited Cited as authority (rule) People v. Cryder
Cal. Ct. App. · 1949 · confidence medium
(People v. Shutler, 15 Cal.App.2d 704, 707 [ 59 P.2d 1050 ]; People v. Tallman, 27 Cal.2d 209, 213 [ 163 P.2d 857 ].) It was therefore not error to deny appellants’ motion to dismiss count I.
discussed Cited as authority (rule) People v. McRae (2×)
Cal. · 1947 · confidence medium
(People v. Nagle, 25 Cal.2d 216, 222 [ 153 P.2d 344 ]; People v. Tallman, 27 Cal.2d 209, 212 [ 163 P.2d 857 ]; People v. Mitchell, 27 Cal.2d 678, 681 [ 166 P.2d 10 ].) The order appealed from is reversed.
discussed Cited "see" People v. Rutland (2×)
Cal. Ct. App. · 1953 · signal: see · confidence high
(People v. D’Elia, 73 Cal.App.2d 764, 766 [ 167 P.2d 253 ]; see People v. Tallman, 27 Cal.2d 209, 215 [ 163 P.2d 857 ].) The judgment is affirmed.
discussed Cited "see" People v. Mearse (2×)
Cal. Ct. App. · 1949 · signal: see · confidence high
Code, § 1237; see People v. Tollman, 27 Cal.2d 209, 215 [ 163 P.2d 857 ].) The judgment and order are affirmed.
discussed Cited "see, e.g." People v. Knighten CA1/3
Cal. Ct. App. · 2026 · signal: see also · confidence low
VI.) Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.” (People v. Jones (1990) 51 Cal.3d 294, 317 ; People v. Graff (2009) 170 Cal.App.4th 345, 360 (Graff).) California courts have interpreted section 1009 as being “subject to two limitations: (1) An information cannot be amended so as to charge an offense not shown by the evidence taken at the preliminary examination; and (2) if the substantial rights of the defendant wo…
Retrieving the full opinion text from the archive…
The PEOPLE, Respondent,
v.
FRANK E. TALLMAN, Appellant
Crim. 4658.
California Supreme Court.
Nov 9, 1945.
163 P.2d 857
1945 Cal. LEXIS 230
Forrest A. Betts and Wm. J. Currer, Jr., for Appellant., Robert W. Kenny, Attorney General, and Carl S. Kegley, Deputy Attorney General, for Respondent.
Gibson.
Cited by 58 opinions  |  Published
GIBSON, C. J.

While on her way to school a fourteen-year-old girl was grabbed by a man as she walked through a hole in a hedge that surrounded the school grounds. The offender placed one of his hands under her skirt and his other hand was upon her body outside of her clothes. The child pulled herself free and ran to the school. On the following morning, at the same place and at approximately the same time a man committed a similar attack on a second school girl. She likewise pushed or kicked herself free and as the man departed from the scene in an automobile the girl’s companion repeated the license number, which the girl then wrote on the cover of one of her books. Three days later defendant was traced through this license number and identified by the girls in a police line-up. Upon the trial, the girls also pointed to defendant as their assailant and described and identified his automobile as the one in which he had approached and departed from the scene of the offenses. The school book on which the license number had been inscribed was also introduced in evidence.

The jury rejected defendant’s claim that he was elsewhere at the times in question and convicted him on two counts of simple assault, lesser offenses included in those charged against him. He was sentenced to serve six months in the county jail on each count, the sentences to run consecutively.

The verdicts are amply supported by the evidence and[*212] its sufficiency is not challenged by defendant. His first contention concerns the manner in which he was charged by the information filed by the district attorney. It appears that following his preliminary examination defendant was held to answer on two counts (one with respect to each girl) of assault with intent to commit rape. An information charging these offenses was thereupon filed and upon his arraignment defendant pleaded not guilty. Before the commencement of trial, however, the district attorney was permitted, over defendant’s Objection, to file an amended information and the trial was continued to a later date. As amended, the information contained six counts and also charged a prior felony conviction of larceny which defendant admitted. The six counts describe three offenses against each of the two girls involved and all relate to the two occurrences above mentioned which were the subject of the evidence produced at the preliminary hearing. The amended information charged assault with intent to commit rape in counts 1 and 4; attempted rape in counts 2 and 5; and assault by means of force likely to produce great bodily injury in counts 3 and 6. Inasmuch as defendant was acquitted on four counts (1, 2, 4 and 5) we need not concern ourselves with them.

Defendant contends that the evidence at the preliminary examination showed at the most two offenses of simple assault, a misdemeanor, and that it was therefore improper to permit the filing of the amended information charging the offense of assault with force likely to produce great bodily injury, a felony. It is settled that the offense of assault with force likely to produce great bodily injury (charged in counts 3 and 6) may be perpetrated by means of the hands alone. (People v. Hinshaw, 194 Cal. 1, 14-18 [227 P. 156]; People v. Bumbaugh, 48 Cal.App.2d 791, 796-797 [120 P.2d 703]; see, also, People v. McIlvain, 55 Cal.App.2d 322, 331 [130 P.2d 131].) The evidence taken at the preliminary examination which was before the trial court when it permitted the filing of the amended information, disclosed that defendant seized his victims and moved his hands in a clawing manner over their bodies. In order to support the filing of a charge the evidence before a committing magistrate need not require conviction but is adequate if it appears that a public offense has been committed and there is sufficient cause to believe defendant guilty thereof. The evidence taken at the preliminary hearing supports the filing of the charges contained in counts 3 and 6.

[*213] This brings us to a consideration of the question whether the court erred in allowing the information to be amended to add the two counts charging assault with force likely to produce great bodily injury. Section 1008 of the Penal Code governs the amendment of an information. It permits an amendment without leave of court at any time before the defendant pleads. At any stage of the proceeding, however, the court may order an amendment for any defect or deficiency unless the substantial rights of the defendant would be prejudiced, in which event a reasonable continuance is to be allowed. An information is deficient within the meaning of section 1008 so as to permit of its amendment, when it fails to charge one or more of the offenses shown by the evidence at the preliminary examination. (People v. Shutler, 15 Cal.App.2d 704, 708 [59 P.2d 1050].) The section forbids, however, an amendment which charges “an offense not shown by the evidence taken at the preliminary examination.” Here, as already shown, the addition of counts 3 and 6 by amendment charged only offenses covered by the evidence produced at the preliminary hearing. They were offenses against the same girls named in the original information and were predicated upon their testimony as to the same two occurrences which underlay the charges set forth in the original information. The defendant was not caught unawares, since the evidence taken upon the preliminary examination disclosed the offenses with which he might be charged.

It is established that the provision of the section allowing an amendment of an information so as to add an offense shown by the evidence at the preliminary examination, does not violate a defendant’s constitutional rights. (People v. Foster, 198 Cal. 112, 119-121 [243 P. 667]; People v. Shutler, 15 Cal.App.2d 704, 705-708 [59 P.2d 1050]; People v. Roth, 137 Cal.App. 592, 607-608 [31 P. 813]; see, also, People v. Bird, 212 Cal. 632, 638 [300 P. 23].) Section 809 of the Penal Code which governs the filing of an original information was amended in 1927 to make it conform to section 1008 governing the filing of an amended information. As amended, section 809 provides in part that the original information “may charge the offense, or offenses, named in the order of commitment, or any offense, or offenses, shown by the evidence taken before the magistrate to have been committed.” This section likewise has been held to do no violence to either federal or state constitutional provisions. (People [*214] v. Bird, 212 Cal. 632, 636-645 [300 P. 23]; People v. Sanders, 102 Cal.App. 237, 239-246 [283 P. 136]; People v. Malowitz, 133 Cal.App. 250, 260 [24 P.2d 177].) All that has been said from the standpoint of constitutional interpretation to support the validity of section 809 of the Penal Code may be urged with like force to sustain section 1008. In other words, if the district attorney may with propriety file an information charging an offense shown by the evidence taken at the preliminary hearing even though the defendant was not bound over or committed therefor, he may with equal propriety - amend an information to charge an offense shown by the evidence at the preliminary examination even though not set forth in the order of commitment or in the original information.

Defendant next contends that prejudicial error occurred during the cross-examination of an expert witness called by the defense. The expert, a woman doctor, in answer to a hypothetical question testified that the incidents or occurrences related by the girls might be traceable to hallucinations, stating that her experience caused her to believe that in many of such cases the crimes had no foundation in fact but were the figment of the adolescent mind disturbed by a developing sex-consciousness. On cross-examination by the district attorney, the doctor testified that a man might seek sexual gratification under circumstances similar to those disclosed by the prosecution evidence or by exhibiting himself without touching the other person, and if an adolescent girl stated that she was involved in some such experience, it would hot necessarily follow that her statement was the result of an hallucination. It is urged that since the direct examination of the witness was limited to the reactions of a girl and the cross-examination called for an opinion with respect to the conduct of a man it went beyond the direct examination and was improper. The cross-examination had a direct bearing on the credibility of the witness and upon the weight to be given her testimony. A wide latitude is permitted in the cross-examination of an expert witness in all matters tending to test his credibility so that the jury may determine the weight to be given the testimony, and an expert who has testified in answer to hypothetical questions may be cross-examined by the opposing party by means of hypothetical questions in order to ascertain his knowledge of the matters about which he gave an opinion. (McFadden v. Santa Ana etc. Ry. Co., 87 Cal. 464, 470 [25 P. 681, 11 L.R.A. 252]; People v. Hill, 116 Cal. 562, 567 [48 P. 711]; 8 Cal.Jur. 163,[*215] § 243; see, also, 2 Wharton’s Criminal Evidence (11th ed.) 1784-1785, §1023.)

Defendant contends that prejudicial error was committed by the trial court in the giving and refusing of instructions. It is asserted that there is no substantial difference between the instruction defining simple assault and the one defining the greater offense of assault with force likely to produce great bodily injury. The offense of simple assault was correctly defined (Pen. Code, § 240; People v. Bradbury, 151 Cal. 675, 676-677 [91 P. 497]), and since defendant was found guilty of that offense, he obviously was not prejudiced by any asserted similarity between the instruction on simple assault and the one defining assault with force likely to produce great bodily injury.

It is further argued that the court erred in refusing a requested instruction to the general effect that if a reasonable doubt exists as to the identification of the defendant it must be resolved in his favor. The court fully instructed the jury on the subject of reasonable doubt and defendant was not prejudiced by the failure to give the proposed instruction.

Defendant finally contends that the trial judge and the district attorney were guilty of misconduct in making certain remarks which assertedly tended to disparage him and his attorney in the minds of the jurors. We find nothing in the remarks complained of which was prejudicial to the rights of defendant or resulted in a miscarriage of justice.

The appeals from the order denying the motion in arrest of judgment and from the sentence are dismissed. (Pen. Code, § 1237.) The judgment and order denying a new trial are affirmed.

Shenk, J., Edmonds, J., Carter, J., Traynor, J., Schauer, J., and Spence, J., concurred.

Appellant’s petition for a rehearing was denied November 29, 1945.