134 P. 339 | Cal. Ct. App. | 1913
Defendant was prosecuted for the offense defined in section
A demurrer interposed to the indictment raised the point that there were two offenses charged therein, contrary to the provisions of section
The evidence heard at the trial showed that this appellant and his co-conspirators were among a number of persons who were arrested on a charge of having violated an ordinance of the city of Holtville regulating the sale of intoxicating liquors; that these persons were taken before Loveland, who was the city recorder of Holtville, where J. C. Kendrick, one of the alleged conspirators, deposited one hundred and twenty-five dollars as bail for himself and four of the others; that thereafter the recorder accepted written undertakings in lieu of the cash bail and issued his check to Kendrick, drawn upon a bank at Holtville, for the amount of one hundred and twenty-five dollars; that this check was refused payment upon presentation at the bank for lack of funds, and that Kendrick *365
and Johnson then demanded a complaint of the district attorney of Imperial County charging Loveland with having issued a check without having money or credit at the bank sufficient to pay the same, which complaint the district attorney refused to issue; that thereupon, after consultation with their counsel, Johnson went before a magistrate at the city of Imperial and there secured a warrant for the arrest of Loveland; that this warrant was secured during the early evening hours of the day preceding the date upon which the trial of Johnson and others was set to be held before Loveland; that the warrant of arrest was delivered to the officer at Imperial the same evening and he served the same upon Loveland while the trial of appellant and the other persons referred to was in progress at Holtville. There was no evidence that appellant or either of his alleged co-conspirators instructed or requested the officer holding the warrant of arrest to make service upon Loveland while the latter was holding court and if it was the design of the alleged conspirators that this should be done proof thereof must be found wholly in the circumstances that the warrant was procured and delivered to the arresting officer at a late hour on the date preceding the Holtville trial. In the second count of the indictment appellant was charged both with having conspired to falsely cause the arrest of Loveland and also with conspiring to obstruct justice by causing Loveland to be arrested while holding court thereby discrediting him with the jurymen and prejudicing the prosecution of the case pending before him. It cannot, of course, be determined as to whether the jury concluded that appellant was guilty of having conspired falsely to accuse Loveland of a crime, or of having conspired to obstruct justice by causing Loveland to be arrested while engaged in the trial of the criminal cause referred to. While it was proper to include in either count charges under one or more of the subdivisions of section
The error complained of and last discussed requires that that judgment and order be reversed, and it is so ordered.
Allen, P. J., and Shaw, J., concurred. *367