17 Cal. 354 | Cal. | 1861
C. J. and Cope, J. concurring.
Defendant, appellant here, ivas convicted of the crime of larceny, in the Court of Sessions of San Francisco county, and now appeals from the judgment. Several errors are assigned:
1. That the Court is not properly entitled, it being styled the Court of Sessions of the city and county of San Francisco. This point was decided adversely to the appellant in the case of the People v. Beatty.
2. That the indictment is defective in this : In one count charging the goods stolen to be the property of certain persons, and in the other counts stating the owners to be different persons. This is not charging different offenses, but charging the same offense in different forms. The offense is the larceny of this property. The description or averment of ownership is but a mode, or a portion of the mode of describing the offense. The practice of different counts varying the statements of the first in this respect prevailed at common law, and has not been changed by our-statute. On the contrary, it is recognized by the Criminal Practice Act (Wood’s Dig. 288).
But the main objection is, that the indictment in the first count sets out several offenses ; that it charges the stealing of several distinct parcels of goods alleged to be the property of different persons. Upon this count the defendant was convicted. No demurrer was taken to the indictment for this cause, but the defendant pleaded and went to trial. By section two hundred and eighty-nine, (Wood’s Dig. 292) it is provided “ that the defendant may demur to the indictment when it shall appear upon the face thereof. * *
3. That more than one offense has been charged in the indictment; ” and by section two hundred and ninety-seven, when the objections mentioned in section two hundred and eighty-nine appear upon the face of the indictment, they can only be taken advantage of by demurrer, with an exception not material to be here noticed.
We think the other points—as to the arraignment and the submitting the competency of two jurors together to the trier—snot sustained by the record. The proceedings of the Court are presumed.
Judgment affirmed.
On petition for rehearing, Baldwin, J. delivered the opinion of the Court—Cope, J. concurring.
We deny the petition for a rehearing. Although we did not consider it necessary to go into an elaborate opinion in this cause, and the others dependent upon the same or similar principles, we gave a full consideration of every point made by the appellants. In reference to the point that the record did not show that the instructions were filed or made part of the record, we disposed of that matter by simply stating the proposition that the failure to file the instructions is not an error for which we could reverse the judgment, unless, indeed, something else appeared than the mere fact that the record showed that the Court gave written instructions to the jury, and the transcript omitted the instructions. The instructions may have been in writing, and been lost or misplaced. The Clerk may have omitted to discharge his duty in preserving or in filing them, or they might possibly be abstracted. So any other paper in the record may, at the time of making the transcript, be out of the files, but this is no ground for the reversal of the judgment. The presumption is that the Court has acted regularly— that the instructions given are proper—and it must be affirmatively shown that error has been committed. This is not shown by the mere fact that the Court gave written instructions, and those instructions were not, at the time of making up the transcript, among the papers.
The question upon the sufficiency of the indictment was maturely considered, and after an attentive examination of the argument of the appellant, we adhere to the opinion before expressed.
