114 Cal. 350 | Cal. | 1896
On April 4,1895, the defendant was convicted under an indictment for passing and publishing a fictitious check, with intent to defraud, and which also, charged a prior conviction for petit larceny. A verdict-of guilty was returned by the jury as to making and passing the fictitious check, but the verdict was silent as to the prior conviction for petit larceny. An appeal-was taken from that judgment to this court, and the court below was directed to treat the verdict as a finding against the defendant upon the crime charged and in favor of the defendant upon the question of prior conviction, and the judgment was reversed, with directions to the trial court to pronounce a. judgment and sentence upon defendant, in the exercise of his discretion, upon the facts and circumstances of the case, as provided for by section 476 of the Penal Code; and further directing the court that the judgment should designate the offense as the making, passing, and publishing a fictitious check with intent to defraud. (People v. Eppinger, 109 Cal. 294.)
“The defendant thereupon, through his counsel, did not make a motion for a new trial, but offered and requested permission to make a motion for a new trial upon the ground that since the taking of the last appeal new evidence had been discovered material to the defendant, and which he could not with reasonable diligence have discovered and produced at the trial. The defendant did not offer or request permission to read in support of said motion any affidavit, and, being called on to state what the newly discovered evidence was, the counsel declined to do so.” The court refused to allow the said motion for a new trial, and to its refusal the defendant excepted, and assigns the same as error.
The court thereupon rendered judgment as follows: “ That, whereas the said W. L. Eppinger having been duly convicted in this court of the crime of felony, to wit, forgery, it is therefore ordered, adjudged, and decreed that the said W. L. Eppinger be punished by imprisonment in the state prison of the state of California, at San Quentin, for the term of fourteen years ”; and from this judgment the defendant appeals, upon the judgment-roll and a bill of exceptions. Upon this record two questions are made and argued by appellant: 1. That the charge upon which he was tried and convicted was for making and passing a fictitious check with intent to defraud, while the judgment is for a different offense, namely, "forgery”; 2. That the court erred in refusing to permit him to make a motion for a new trial.
1. The indictment upon which the defendant was tried and found guilty was held, upon the former appeal, to charge the crime of making and passing a fictitious check, with intent to defraud. As to the correctness of
In that case the information charged an embezzlement, while the judgment was for grand larceny; and
2. It is not quite clear from the record whether the defendant made a motion for a new trial, or asked permission to make such motion. The bill of exceptions •is not clear upon the point, while the judgment recites (that a motion for a new trial was made, and denied by the court. In either case, however, the ruling was right. The grounds of the motion, or proposed motion, were stated by counsel to be the discovery of new evidence after the former appeal had been taken. No affidavits, either of the defendant or his counsel, or of the ■persons by whom the newly discovered evidence could be given, were produced or offered; nor was there any ■statement by counsel of the nature or the character of 4he newly discovered evidence, or when it was discovered, or that its discovery was so recent as to prevent
The question discussed by counsel as to the right of a defendant to show cause against a new judgment need not be considered. That question does not necessarily arise upon this appeal. Appellant, however, asks that the judgment be reversed, with permission to show cause against a new judgment in the manner provided by sections 1200 and 1201 of the Penal Code. Without considering or deciding the question of defendant’s right under those sections to show cause why a proper judgment should not be rendered, it is sufficient to say that there is nothing in the record before us which indicates that the defendant has any grounds for such motion, and the request of counsel should therefore be denied.
, The judgment appealed from should be reversed, with directions to the court .below to render judgment against the defendant for the offense of making and passing a fictitious check with intent to defraud.
Searls, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion the judgment appealed from is reversed, with directions to the court below to render judgment against the defendant for the offense of making and passing a fictitious check with intent to defraud.
McFarland, J., Temple, J., Henshaw, J.