157 P. 1003 | Cal. Ct. App. | 1916
Appeal from a judgment of imprisonment and from an order denying defendant's motion for a new trial.
Defendant was prosecuted agreeable to the provisions of section
Referring to the evidence, the sufficiency of which is challenged by appellant, it will be sufficient to say that there was testimony relevant and competent to support the allegations of the information as to all material matters charged therein. Under such a state of the case, it is not for this court to revise the finding of the jury on the questions of fact.
Appellant contends that the showing made by him of alleged disqualification of the trial judge as to bias and prejudice, should have been sustained. It appears that the appellant had been a defendant in another case under a similar charge, and that, after conviction and when probation was there being applied for, the judge, being the same judge who sat at this trial, refused to approve an order for probation, and gave it as his opinion in that connection that the defendant should, for the offense there considered, be placed in the penitentiary. Affidavits of the deputy district attorney and of the trial judge were filed, which contradicted the assertion of appellant as to any improper bias or prejudice.
It is urged that defendant should not have been convicted of the crime of grand larceny, because the section of the code under which he was prosecuted makes the commission of the acts charged amount only to "larceny." In section
The court charged the jury that the intent with which the act alleged was done was not an element of the offense, and then proceeded to state that "when the intent is not made an affirmative element of a crime the law interprets that the act knowingly done was of criminal intent, and it need not be alleged or proven." That instruction was in accordance with the law as laid down by this court in People v. Phillips,
Appellant made the point that the law did not permit of the imposition of a fine in addition to a sentence of imprisonment, and has referred to the section of the Penal Code fixing the punishment for grand larceny. Upon our first examination of the case, no answer being made on behalf of the attorney-general to this point, it seemed that the objection to that portion of the judgment which imposed the fine of two hundred dollars was well taken. However, our attention has now been called to section
The judgment and order are affirmed.
Conrey, P. J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 27, 1916, and the following opinion then rendered thereon:
THE COURT. — The application for a hearing in this court after decision by the district court of appeal of the second district is denied.
In denying the application we do not wish to be understood as holding that if permission to sell was given by the mortgagee, it would not operate as a complete waiver of the requirement of the statute that notice of the sale shall be given to the mortgagee. We express no opinion upon that question. The complaint that error was committed in the giving of an instruction bearing on this question was sufficiently answered by what is said in the opinion of the district court of appeal that "the information contained a twofold charge, to wit, not only that there was a failure to give notice to the mortgagee, but also a failure to give notice to the purchaser of the animals sold." *36