61 P. 961 | Cal. | 1900
Defendant was informed against by the district attorney of Sacramento county for the crime of murder and was tried and convicted of murder, in the first degree. He thereupon moved for a new trial, which was denied, *260 and he was sentenced to death by hanging. From the judgment and order overruling his motion for a new trial the defendant prosecutes this appeal.
The evidence discloses that the defendant was a convict in the state prison at Folsom; that on May 15, 1889, within the prison walls, defendant walked past a fellow-convict named Showers, who was sitting on a doorstep, wheeled around, grasped Showers by the chin with his left hand, pulled his head around, and stabbed him six times with a knife, from the effects of which Showers died within a few minutes thereafter.
The first point made on the part of the appellant is that the court erred in overruling the defendant's motion for a continuance of the trial. The motion is based on affidavits of one of defendant's counsel. Pretty much everything stated in the affidavit was upon information and belief. The grounds for a continuance were: 1. Absence of witnesses; and 2. Lack of sufficient counsel. The names of the witnesses, except as to one Abe Majors, are not given, and it is stated that said Majors was a convict and to be executed within ten days from the date of the affidavit, and his testimony was sought to be procured for the purpose of refuting an anticipated theory of the prosecution. There was no showing of diligence in the affidavit, nor that the continuance was not sought for mere delay. With reference to obtaining additional counsel the affidavit sets forth that defendant's mother was endeavoring to negotiate for the services of an attorney other than the two appointed by the court to defend the appellant. The affidavit was clearly insufficient on both of the grounds, and it was not an abuse of discretion on the part of the trial court to deny the motion. Besides, it appears that the defendant was zealously and ably defended by the counsel who represented him. and was allowed an opportunity to, and did, procure the attendance of witnesses. The cause was set down for trial on June 5, 1899, and prior thereto the court permitted the defendant to withdraw his plea of not guilty in order to file an objection to the sufficiency of the information. The court having overruled the objection to the sufficiency of the information, and the defendant having again entered his plea of not guilty, moved the court to continue the cause to some *261 other date than the 5th of June, which motion was denied, and this is assigned as error. It is not shown, nor does it appear, that the defendant was prejudiced in any way by the ruling of the court in refusing to postpone the trial, and it is apparent that he was not so prejudiced. The defendant made application to have thirteen convicts, some of them under sentence of death and confined in the state prison at Folsom, brought to Sacramento to testify in his behalf. Upon the showing made the court granted the application as to six of the parties mentioned in the affidavit, and ordered that the deposition of the other seven be taken at the prison.
This question was fully considered in Willard v. SuperiorCourt,
In People v. Willard,
In the case under consideration it is quite apparent that the action of the court was not at all prejudicial, inasmuch as the defendant was allowed to take the depositions of the witnesses named who were not ordered produced at the trial, thereby giving him the benefit of the testimony of all those named in his application.
Under the rule laid down in this court in People v. Chin Hane,
The court did not err in refusing at the defendant's request to give certain instructions with reference to a preponderance of evidence. Other instructions bearing upon that question, free from the objections of defendant's instructions, were given.
An examination of the record shows that the instructions as a whole, as well as the entire course of the trial, were as fair and favorable to the defendant as the case would justify.
Judgment and order affirmed.
McFarland, J., Harrison, J., and Garoutte, J., concurred.