People v. Calkins

Defendant was convicted of the crime of criminal libel of W. V. Buckner by the publication on December" 23, 1934, of an article appearing in the Corcoran News, a newspaper published in Corcoran, Kings County, of which he was the publisher and editor. Besides appealing from the judgment and order denying his motion for new trial, defendant has attempted to appeal from an “order denying'a motion to set aside the information”, an “order denying the plea of former jeopardy, and the plea of former acquittal”, and “the order . . . permitting the association of counsel for the prosecution as special counsel”. The three orders latterly specified are not- appealable orders and the attempted appeal from them is dismissed. (Sec. 1237, Pen. Code.)

W.

Defendant urges that the trial court erred in denying his motion to set aside the information against him. He divides his argument in support of this contention into three subdivisions: (1) That he was not in legal custody, contending that the warrant of arrest issued by the justice of the peace before whom the original complaint was filed was never served upon him. (2) That this justice of the peace refused to disqualify himself after defendant claimed prejudice and bias. (3) That the committing magistrate did not have jurisdiction to conduct the preliminary examination.

The first two grounds specified may not properly be urged in support of a motion to set aside an information. (Sec. 995, Pen. Code; 14 Cal. Jur. 74 et seq.) Even though we could consider these grounds there is no record to support them. The files of the committing magistrate are not before us. (Rule II, Rules for the Supreme Court and District Courts of Appeal.) In support of his third ground defendant argues that as the offense charged was not committed in Hanford Township the justice of the peace of that township had no jurisdiction to hold the preliminary examination. This argument is answered by the case of People v. Van Zandt, 123 Cal. App. 520 [ 11 Pac. (2d) 645 ],

Defendant next urges that the court erred in reading what counsel calls “his written opinion” with his instructions to the jury. The trial judge very briefly and fairly defined the issues of fact presented by the evidence under the law applicable to the case. He is permitted to do this under the provisions of section 19 of article VI of the Constitution since its amendment in 1934. He was careful to advise the members of the jury that they were the sole judges of the facts in the case and that what he said was “merely advisory and not binding upon you”.

The trial judge permitted a member of the bar to be associated with the district attorney in the prosecution of the case. We know of no rule of law, and have been cited to none, prohibiting such procedure.

Defendant states, “Appellant submits to the court that the evidence was insufficient to sustain the verdict of the jury upon information”. This bald statement is made without quotation from or reference to the record, or summary of the evidence, or any supporting argument. Overlooking the unusual manner of presenting this question, we have studied the record and .find that the evidence amply supports the verdict and judgment.

Defendant claims error in the fact that when the information was being read to the jury he objected to the libelous article being read in full because it contained disparaging remarks concerning persons other than the complaining witness.

The information set forth the libelous article in full. No prior objection was made by defendant to the form of the information. During the reading of the information the district attorney offered to have omitted the reading of .those parts of the article referring to persons other than the complaining witness if defendant would consent to such procedure and waive any possible error resulting therefrom. This counsel for defendant refused to do. Section 1093 of the Penal Code provides that in felony cases the information must be read to the jury and that “in all other cases this formality may be dispensed with”. Under the circumstances we can find no prejudicial error in the procedure followed.

Appellant entered a plea of former acquittal and former jeopardy. In support of this plea he introduced in evidence a portion of the record of a case tried in Tulare County where he was acquitted on a charge of libelling W. V. Buckner, the complaining witness in the instant ease. The charge in the Tulare County case was based on an article written and published by defendant on November 2, 1934, which did not name Buckner as the officer who was charged with doing certain unlawful acts. The basis of the proseen

Defendant claims error in the trial court’s ruling on the admissibility of evidence. We have examined those particularly complained of and can find no error in them. The guilt of defendant is so conclusively established by the record that we would find it impossible to reverse the judgment for mere technical errors, if they existed, in view of the provisions of section 4% of article VI of the Constitution.

The judgment and order appealed from are affirmed.

Barnard, P. J., and Harden, J., pro tem., concurred.