49 Cal. 643 | Cal. | 1875
The transcript as originally certified by the Clerk of the Court below and filed here in November last, was defective in that it did not show that an appeal had been taken. No
The cumbrous system of criminal procedure prescribed by the statute, even when pursued with all possible diligence, too often necessitates much delay in the administration of criminal justice, and it is important that this should not be needlessly increased by a failure to observe the plain requirements of the statute in preparing transcripts upon appeal to the Court.
We think there was sufficient evidence of the conspiracy between Alexander and the defendant to justify the Court in admitting in evidence the declarations of the former, made previous to the alleged killing. The question of conspiracy was then submitted to the jury, with instruction to disregard the declarations of Alexander, unless the conspiracy was satisfactorily proved. This was the proper practice.
The objection made to the seventh instruction given on the request of the prosecution is hypercritical. The instruction does not intimate that on the question of conspiracy the jury may act on preponderating evidence; and, if the defendant desired to have it made more specific on this point, he should have called the attention of the Court to it, and requested a modification.
The eighth instruction was to the effect that if Alexander and the defendant ha'd conspired to perpetrate an act of violence upon Mrs. Strong, the jury might consider the declarations made by Alexander in respect thereto, and “draw the same conclusion from them as if made by Geiger.” In other words, the conspiracy to commit the act of violence
The motion to set aside the indictment was properly denied. When the grand jury which found the indictment was impaneled, the defendant was in actual custody under a warrant of arrest, issued by a magistrate on a sworn complaint, charging the defendant with the crime of murder, for which he was afterwards indicted. But he had not then been examined by the committing magistrate. When the grand jury was about to be impaneled, the defendant was brought into Court, and was informed by the Judge that he might then interpose a challenge to the panel or to any individual grand juror, the grand jury being then present. But the defendant declined to interpose any challenge, on the ground that he had not then been held to answer for any offense.
The defendant, at the proper time, moved to set aside the indictment, on the ground that some of the grand jurors who found it, were incompetent to act by reason of their having previously formed and expressed an unqualified opinion that the defendant was guilty of the crime imputed to him, and moved for leave to challenge the said grand jurors and to prove the challenge good. But the Court denied the motion, on the ground that when the grand jury was impaneled the defendant had been held to answer within the meaning of section 995 of the Penal Code, and
Judgment affirmed. Remittitur forthwith.
Mr. Justice McKinstry did not express an opinion.