50 Cal. 447 | Cal. | 1875
During the progress of the trial of this action, the defendant offered to prove that certain words had been inserted in the indictment, and that certain other words of the indictment had been changed since it was filed and became a record of the court. Objection to such proof was made by the prosecution, on the ground that the defendant’s attorney had been informed by one of the attorneys for the prosecution, before the defendant pleaded to the indictment, “that the indictment had been tampered with after it had been found by the grand jury;” and “that there were plenty of witnesses to prove that it had been tampered -with.” The court refused to permit the defendant to make the proof. It is the duty of either party to bring to the attention of the court any alteration of the record of a pending proceeding, promptly, and at the earliest opportunity at which it can be done, after the alteration has come to his knowledge. In this case, that duty was as incumbent on the prosecution as on the defendant. Although the defendant did not promptly move in the matter, he is not thereby precluded from showing that alterations have been made in the indictment. The indictment, as it stood before the alleged alterations were made, only charged the defendant with the crime ofmanslaughter, but, as altered, it charged him with the crime of murder. The court, under that indictment, had no jurisdiction to try him for any crime other than such as was charged in the indictment when it was filed by the grand jury. Consent on the part of the defendant, whether given directly or inferred
Judgment and order reversed, and cause remanded for a new trial. Bemittitur forthwith.
