People v. Ashnauer

47 Cal. 98 | Cal. | 1873

By the Court, Rhodes, J.:

The first point is that the Court erred in refusing to grant a continuance of the cause on the ground of the absence of a material witness for the defendant. The point cannot be entertained, because it is not presented by a bill of exceptions. Had it been properly presented it could not be sustained, because the affidavit does not show due diligence on the part of the defendant in procuring the testimony of the absent witness, nor that he can procure his attendance or his testimony at a subsequent' term of the Court; nor does 'it show that he cannot prove by other persons the same facts that he expected to prove by the absent witness.

The second point is that the indictment is defective, because it is signed “ Henry Starr, District Attorney,” without the addition of the words “ of the County of Sacramento.” If this objection be tenable, it should have been taken in the Court below. But if the objection could now for the first time be taken, the defendant has not referred us to any statute which requires the indictment to be signed by the District Attorney; but conceding that the provision of the Act concerning District Attorneys, that the District Attorney shall draw all indictments, implies that he shall sign them, no authority is cited, and no argument is advanced in support of the position that the name of the county is an essential part of the official signature. If the position be sound the appeal must fail, for neither the County Judge nor County Clerk has appended the name of the county to his official signature, as found in the record. Both the caption and the body of the indictment state the county in which the indictment was found, and that is sufficient to show that the District Attorney who signed it, was acting as the District Attorney for -that county.

The third point is, that the verdict is not sustained by the evidence—is against the weight of the evidence, and is contrary to law. No reason is suggested why the verdict is contrary to law, and, therefore, no further notice will be taken of that branch of the case. It is beyond all controversy that the evidence introduced by the plaintiff was sufficient to sustain the verdict on every issue involved in the prosecution. The defendant introduced evidence which tended to contradict, and which he contends did successfully contradict, the plaintiff’s witnesses in some material points; and he, therefore, insists that the evidence greatly preponderates in his favor. That the defendant may move for a new trial on the ground of the preponderance of the evidence in his favor upon some issue which it is material for the prosecution to establish; and that the Court below, if of the opinion that there i§ such preponderance, should set aside the verdict, is a well established and recognized rule. It is also well settled that this Court will not deal with a question of the mere preponderance of evidence; and this rule, sustained as it is by an unbroken current of the decisions of this Court, beginning -with its organization, should, and we trust soon will, receive the recognition of the entire bar, as the settled law of this State.

Judgment affirmed.