62 P. 408 | Cal. | 1900
Defendant was convicted of the crime of arson, under an indictment presented by the grand jury of San Joaquin county, and was sentenced to ten years' imprisonment at San Quentin. He appeals from the judgment and from the order denying his motion for new trial. There are no errors calling for any statement of the evidence as to defendant's guilt or innocence.
1. Defendant's principal reliance for reversal is that the court erred in denying his motion to set aside the indictment on the ground that the defendant had once before been indicted *74
by a former grand jury for the offense now charged, and upon the setting aside of that indictment of the court it made no order resubmitting the charge to another grand jury for examination, as directed by section
Section 995 directs the court to set aside the indictment in certain enumerated cases. Section
The statute does not make it the duty of the court to resubmit the charge to another grand jury in every case where the court on motion sets aside the indictment first found; it provides that unless the case is resubmitted the bail shall be exonerated, or if money is deposited in lieu of bail such money shall be refunded; and it also provides that, after such submission, should it be ordered, the defendant may be examined before a magistrate as in other cases, if, before indictment or information filed, he has not already been examined and committed by a magistrate. There is nothing in the statute that would forbid a re-examination where the court had failed to order it, or that can be construed to mean that a resubmission is essential to the validity of a second indictment or information. That an order setting aside an indictment or information is no bar to a future prosecution is plainly declared in section 999.
In People v. Campbell,
2. The motion to set aside the indictment was based on the further ground that one Mrs. Susie Osborn was a witness at the trial, while the name of Mrs. E. Osborn was indorsed on the indictment. Section
3. The further ground for the motion is not tenable, to wit, that some of the grand jurors had personal knowledge of the fact that the building was burned. Of course, this, being the corpusdelicti, was a material fact, but knowledge of the fact did not disqualify any one or more of the jurymen from ascertaining whether the building was feloniously destroyed and who was probably the guilty party.
4. It is next contended that the court erred in not granting defendant's motion for a continuance. It appeared that on October 16th the district attorney stated in open court and in defendant's presence that he desired to try the case on October 23d, whereupon defendant requested a continuance of two weeks, in which to prepare for trial, and the case was thereupon set for October 30th. When the case was called for trial on October 30th the defendant stated that he was not ready, and desired further time to procure certain witnesses, and filed a motion to that effect, supported by an affidavit. Section 1052 *77
of the Penal Code provides that: "When an action is called for trial, . . . . the court may, upon sufficient cause, direct the trial to be postponed to another day." While it is the policy of the law to extend to defendant every reasonable opportunity to have his witnesses personally present at the trial, if they can be obtained without unreasonable delay (People v. Dodge,
5. A witness for the prosecution, president of the warehouse company that owned the burned building, testified on cross-examination that he had a small interest in the company as stockholder, and that the company had employed one Gould as a private detective to ascertain the origin of the fire. Defendant's counsel asked the witness how much Gould had been paid for his services. The question was objected to as immaterial, and the objection was sustained, defendant excepting. The ruling is now urged as error. The avowed object was solely to show the company's interest in the prosecution, or the interest of the witness as a stockholder therein. In People v. Gillis,
In People v. Goldenson,
6. There are some seventeen other assignments of errors, as to which the remarks of the court in People v. Woon Tuck Wo,
The judgment and order should be affirmed.
Haynes, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
Van Dyke, J., Garoutte, J., Harrison, J.