235 P. 51 | Cal. Ct. App. | 1925
There are two appeals being prosecuted by the defendant in this case, both having been taken from orders made after final judgment. Although said appeals come before us on separate records, we think the questions arising thereunder may be considered and disposed of in one opinion.
The appellant, Edmund Murphy, was convicted of the crime of rape, and upon appeal the judgment of conviction *178
was on July 12, 1921, affirmed. (People v. Murphy,
[1] Irrespective of the merits of the contention made by appellant in support of these motions, we are of the opinion that the alleged errors complained of were not jurisdictional, but, if errors at all, constituted nothing more than mere errors at law, which occurred prior to the pronouncement of judgment in the case and therefore should have been presented for review, along with the other assignments of error upon which the appeal was taken from the judgment, and we believe that the appeals now before us might be properly disposed of upon that ground; however, we have examined the contentions made by appellant and find that they would be unavailing to appellant, even if seasonably presented.
[2] Regarding the claim that part of the trial took place after the noon hour on Saturday, December 18, 1920, the record discloses that upon arrival of the noon hour on that day the court called attention of appellant's counsel to the fact that it was 12 o'clock, to which appellant's counsel replied: "We will make no objection to finishing with this witness." The court then said: "All right. On motion of the defendant we will continue. . . ." Thereafter the witness, who was under examination by appellant's counsel, was asked only three short additional questions, by appellant's counsel, and after some discussion between counsel, *179 the witness was excused, and one of the assistant district attorneys was sworn and testified as a witness on behalf of appellant. He was asked by appellant's counsel the single question as to whether or not he knew that certain criminal cases against another defendant charged with a like offense had been dismissed, to which he replied that he did. Such were all the proceedings had after the noon hour, except some discussion between counsel on both sides and the court, during which certain facts were stipulated; and the entire proceedings, according to matters set forth in the record, consumed no more than three or four minutes.
The precise question arising here came before this court in an appeal from the judgment in People v. Maljan,
With respect to the point urged on the second appeal it is claimed that in the impanelment of the grand jury the names appearing on the second panel, of which there were four, were resorted to in the completion of the jury before the sixteen names appearing on the original panel were exhausted; in other words, that the twenty names appearing on both panels were deposited in the jury-box together, and that the grand jury was selected therefrom, instead of first depositing and drawing the sixteen names appearing on the *180 first panel and then depositing the four names appearing on the second panel and completing the personnel of the grand jury therefrom; that, consequently, in drawing nineteen names from the box, one name which appeared on the original panel was not drawn, and that person did not become a member of the grand jury.
[3] It thus appears that appellant's objection goes merely to the method employed in the impanelment of the grand jury, and it is well established in this state, as was stated in People v.Hatch,
[4] The fact, if it be a fact, that said indictment was indorsed "a true bill" and signed by a member of the grand jury, other than the one whom the minutes of the court show was appointed and sworn as foreman when the grand jury was impaneled, indicates no error, for the reason that section
The orders appealed from are affirmed.
*181Tyler, P.J., and St. Sure, J., concurred.