25 Cal. 531 | Cal. | 1864
There was no error in overruling the demurrer to the indictment. The property is alleged to have been brought into Tuolumne County, and the offense was indictable in that county. (Wood’s Digest, 277, secs. 87-92.)
The offense is charged in the language of the Act defining it, (Wood’s Digest, 339, sec. 70,) and the circumstances under which it was committed are fully set out. This has repeatedly been held to be sufficient under our statute, without using the word “ feloniously.” (6 Cal. 487 ; 7 Cal. 403 ; 10 Cal. 309 ; 14 Cal. 30 ; 19 Cal. 601.)
On the 20th of January the District Attorney filed an affidavit, stating that a witness for the prosecution, who had been subpcenaed, was absent, and the facts which he expected to prove by him, and asked a postponement of the trial. The prisoner’s counsel opposed the postponement, and offered to admit the facts expected to be proved by the absent witness, and thereupon made, and permitted to be entered upon the
On the 21st the case was called for trial. Again the defendant’s attorney, in the presence of the defendant in open Court, ■ admitted the same facts, and consented that the admission be again entered on the records of the Court, which was accordingly done. '
After examining several witnesses on the part of the prosecution whose testimony tended to prove the same and other facts, the District Attorney, without objection by the defendant, read to the jury from the records of the Court the admissions thus made and entered, and rested.
After the District Attorney had made his opening argument to the jury, and during the argument of defendant’s counsel, the counsel for defendant, for the first time, asked the Court to strike from the testimony the admissions read in evidence as before stated, on the ground that the testimony was illegal and incompetent. The Court refused to strike out, but no exception was taken to the ruling.
The defendant’s counsel, at the close of the argument, asked the Court, substantially, to charge the jury to disregard the said admissions read in evidence, which the Court refused to do, but no exception was taken to the refusal. The admission of this evidence, and the several subsequent rulings in regard to it, are assigned as error. The admission was a solemn admission of record of a fact at the commencement of the trial, and for the purposes of the trial, by the prisoner’s counsel in open » Court, in his presence, and we must presume with his consent. And the admission was on the trial read from the record, in pursuance of the purpose for which the admission and record were made, without any objection on the part of the prisoner. An admission of a fact made at the trial in open Court by the prisoner or his counsel may be properly considered by the
We cannot presume that the charge was oral. The presumption is that the action of the Court was in pursuance of the law, and that the charge was in writing. (People v. Ching Let, 17 Cal. 322.) If the Court gave the charge orally, the ■ fact should appear in the record. The strong implication from the record is that the charge of the Court was in writing. For it appears that the Court at first gave a written charge, asked by the District Attorney, with an oral explanation, to which defendant excepted because the explanation was not in writing, whereupon the Court withdrew the instruction and oral explanation, reduced the same to writing, and read them to the jury as written, directing the jury to disregard them as first given. It does not appear that any oral charge was given other than as just stated. If there had been, the Court, after what occurred, would undoubtedly have corrected the error. We think it was competent for the Court to correct the error at the time, in the manner shown by the record.
No other point requires notice.
Judgment affirmed.