The opinion
CLARK, J., Dissenting.
The question presented is whether a defendant must specify the grounds when moving for a judgment of acquittal pursuant to section 1118 of the Penal Code. 1
In civil practice the counterpart to Penal Code section 1118 is Code of Civil Procedure section 581c. 2 That section, like section 1118, does not expressly provide that the grounds for a motion under it must be specified. Nevertheless, “[bjecause of the possible drastic effect of the motion the courts have established rules to protect the plain tiff. In order to alert him to any deficiencies and to give him an opportunity to cure or eliminate them: (1) the motion for nonsuit must state the precise grounds upon which it is made, with the defects in the opening statement clearly and particularly indicated (2 Witkin, Cal. Procedure (1954) Trial § 129); (2) ‘only the grounds specified [by counsel] should be considered by the lower court in its ruling, or by the appellate court on review’ (2 Witkin, id., § 130); and (3) ‘grounds not specified in a motion for nonsuit will be considered by an appellate court only if it is clear that the defect is one which could not have been remedied had it been called to the attention of plaintiff by the motion.’ (Lawless v. Calaway, 24 Cal.2d 81, 94 [ 147 P.2d 604 ].)” (Timmsen v. Forest E. Olson, Inc. (1970) 6 Cal.App.3d 860, 868 [ 86 Cal.Rptr. 359 ].)
The plaintiff in a criminal case is, of course, the People. What, to use the language of Timmsen , is the “possible drastic effect” of a section 1118 motion from which the People should be protected by a requirement that the grounds for such a motion be plainly stated? It is the granting of a judgment of acquittal in favor of a defendant who would have been found guilty beyond a reasonable doubt of the crime charged against him *543 if the people had been given fair notice of the purported deficiencies in their case and an opportunity to remedy them.
The evil in failing to require fair notice is illustrated by this case. Defendant has been proven guilty beyond a reasonable doubt of firing a shotgun at an inhabited building (Pen. Code, § 246). Had defendant specified as the ground for his section 1118 motion the absence of corroboration for the accomplice’s testimony, the People could have moved to reopen their case-in-chief and provided such corroboration. This is not a matter of speculation. The People did provide such corroboration on rebuttal. Had the People been unable to corroborate the accomplice’s testimony, the trial court—properly apprised of the specific grounds for the motion—would have entered a judgment of acquittal, saving defendant and society the time and expense involved in subsequent proceedings in the Court of Appeal and this court. However, because of the rule announced today our judicial system has spent over three years determining that defendant is guilty beyond a reasonable doubt of a vicious crime but must nevertheless go scot free. 3
The majority respond that requiring a specific statement of the grounds in support of a motion for acquittal will place the defendant in a dilemma: If he specifies the defects in their case, the People have an opportunity to reopen in order to cure the defects; if he fails to specify the defects, the motion will be denied and he will be precluded from raising the point on appeal.
The short answer is that a defendant is commonly and properly faced with “dilemmas” of this sort. For example, a defendant is required to specify the grounds for an objection to the admissibility of evidence. “[It is] the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. (See Evid. Code, § 353; People v. Welch (1972) 8 Cal.3d 106, 114-115 [ 104 Cal.Rptr. 217 , 501 P.2d 225 ]; People v. De Santiago (1969) 71 Cal.2d 18, 22 [ 76 Cal.Rptr. 809 , 453 P.2d 353 ].) The contrary rule would deprive the People of the opportunity to cure the defect at trial and would ‘permit the *544 defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.’ (Coy v. Superior Court (1959) 51 Cal.2d 471, 473 [ 334 P.2d 569 ].)” (People v. Rogers (1978) 21 Cal.3d 542, 548 [ 146 Cal.Rptr. 732 , 579 P.2d 1048 ].)
I would affirm the judgment.
Section 1118 provides in pertinent part: “In a case tried by the court without a jury . . . the court on motion of the defendant or on its own motion shall order the entry of a judgment of acquittal . . . after the evidence of the prosecution has been closed if the court, upon weighing the evidence then before it, finds the defendant not guilty. . . .”
Section 581c provides: “After the plaintiff has completed his opening statement, or the presentation of his evidence in a trial by jury, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit. [11] If the motion is granted, unless the court in its order for judgment otherwise specifies, such judgment of nonsuit operates as an adjudication upon the merits.”
Justice Macklin Fleming has observed: “Each time the criminal process is thwarted by a technicality that does not bear on the innocence or guilt of the accused, we trumpet abroad the notion of injustice; and each time a patently guilty person is released, some damage is done to the general sense of justice.” (Fleming, The Price of Perfect Justice: The Adverse Consequences of Current Legal Doctrine on the American Courtroom (1974) p. 9.)