205 P. 121 | Cal. | 1922
The defendant and appellant was extradited from the state of New Mexico to the county of San Diego upon a charge of embezzlement. While held in said county as a prisoner under such charge the district attorney of the county filed in said county an amended information accusing the defendant of the crime of bigamy, alleged to have been committed. "on or about the 15th day of November, 1920, at the County of Orange, State of California"; the information further alleged that defendant was apprehended in said county of San Diego. Upon the trial of the bigamy charge the prosecution, after producing evidence tending to prove the allegations of the information, rested, whereupon the defendant offered to prove, first, that he was arrested out of the state upon the embezzlement charge and brought into San Diego County, and there held upon such charge, and while so held was arrested for the alleged bigamy; and,second, that after the alleged marriage in Orange County he never returned to San Diego County until extradited. To each of these offers the prosecution objected upon the ground that it was incompetent, irrelevant, and immaterial how he came into San Diego County, that the fact that he was there was sufficient, which objection was sustained. The jury found the defendant guilty as charged. In due time defendant filed a motion in arrest of judgment, and a motion for a new trial, both of which were denied, and judgment pronounced. It is from these orders and said judgment that this appeal is prosecuted. [1] The order denying the motion for an arrest of judgment not being appealable (Pen. Code, sec. 1237), may be dismissed without discussion.
The contention of defendant that, having been extradited from New Mexico on a charge of embezzlement, he could not legally be tried on the charge of bigamy without first having been given an opportunity to leave the state, cannot be sustained. [2] It is now settled by the great weight of authority that a person charged with crime, who is extradited from one of the several states to the one from which he was a fugitive, may be tried for any criminal *284 charge which the latter state may have against him, even though it is distinct from the offense named in the extradition papers. "Although there has long been a conflict in the decisions of courts of the several states, it is now generally accepted that a fugitive from justice, surrendered by one state upon the demand of another, is not protected from prosecution for offenses other than that for which he was surrendered, but may be tried for any crimes committed in the demanding state either before or after extradition without having been given an opportunity to leave the state." (25 Corpus Juris, p. 272, sec. 47, and cases cited.)
We pass to the consideration of the rulings of the court upon defendant's offers to prove. It is asserted that the evidence embodied in the offers was material and admissible to show that the superior court of San Diego County was without jurisdiction to try the defendant, for the reason that the bigamy, of which he was accused, was committed in Orange County. Defendant advances a number of arguments in support of this claim, some of which, it must be conceded, are not lacking in persuasive force. [3] It is claimed that section
In Barber v. State,
In 1604, during the reign of James I, bigamy was made a crime cognizable in common-law courts of England by a statute which in part provided: "If any person or persons within his Majesty's dominions of England and Wales, being married, or which hereafter shall marry, do at any time after the end of the session of this present parliament, marry any person or persons, the former husband or wife being alive; that then every such offense shall be felony, and the person or persons so offending shall suffer death as in cases of felony; and theparty and parties so offending shall receive such and the likeproceeding, trial and execution in such county where suchperson or persons shall be apprehended, as if the offense hadbeen committed in such county where such person or personsshall be taken or apprehended." (1 Jac. 1, Chap. XI, 7 Stats. at Large, 88.) [Italics ours.] It was this statute that first made bigamy a felony and hence triable by a jury in a common-law court in England. The portion thereof permitting a trial in the county in which the defendant was apprehended *287 was re-enacted in England in 1828 in these words: "Any such offense may be dealt with, enquired of, tried, determined, and punished in the County where the Offender shall be apprehendedor be in Custody, as if the Offence had been actually committedin that County." (9 Geo. IV, c. 31, sec. 22, 68 Stats. at Large, 106.) [Italics ours.] Substantially the same provision was in 1861 incorporated in "An Act to consolidate and amend the Statute Law of England and Ireland relating to Offenses against the Person," as follows: "Any such Offense [bigamy] may be dealt with, inquired of, tried, determined and punished in any County or Place in England or Ireland where the Offender shall be apprehended or be in Custody, in the same Manner in all respects as if the Offense had been actually committed in that County or Place." (24 and 25 Vict., c. 100, sec. 57, 101 Stats. at Large, 425, 438.)
We have thus traced in detail the evolution of the law relating to the trial by a jury at common law of the charge of bigamy, for the purpose of showing that when first made a felony, cognizable by such tribunals, and continuously thereafter down to the time of the adoption of our constitution of 1849, from which section 7 of article I of our present constitution was taken (Const. 1849, art. 1, sec. 3), the statutes of England conferring such jurisdiction provided that one of its incidents should be and was, that one accused ofbigamy could be tried in the county wherein he was apprehendedthough the act of bigamy was committed in another county. These statutes in effect declared that the accused could be tried by a jury from the vicinage either of the place where it is charged the crime was committed or of the place where he was apprehended. So far as our research has disclosed, the common law has never declared that a person accused of bigamy couldonly be tried by a jury selected from the vicinage of the place where the crime was alleged to have been committed. It is obvious that the provisions of section
The foregoing views do not conflict with those expressed inPeople v. Powell, supra; upon the contrary, they are in entire harmony with them. In that case the defendant was, by information filed in the county of San Mateo, charged with murder alleged to have been committed in that county. He was twice tried in said county, each trial resulting in a disagreement. Without attempting to secure a third jury in said county, the district attorney applied for a removal of the case to the city and county of San Francisco under section
From what precedes, it follows that the rulings of the court upon the defendant's offers of proof, since they embodied evidence which was immaterial, were correct, and that the judgment and order denying appellant's motion for new trial must be, and they are, affirmed.
Shaw, C. J., Lawlor, J., Wilbur, J., Sloane, J., and Waste, J., concurred.