DocketNumber： Crim. No. 5202
Judges： Comb
Filed Date： 6/24/1955
Status： Precedential
Modified Date： 11/3/2024
Prom a judgment of guilty on four counts of issuing checks without sufficient funds, with intent to defraud, and one count of grand theft, defendant appeals. There are also appeals from orders denying (1) a motion for a new trial, and (2) a motion in arrest of judgment.
Defendant does not question the sufficiency of the evidence to sustain the judgment but claims that: (a) the court erred in denying his motion for a continuance, thus forcing
(b) The court had no jurisdiction to try defendant since the trial did not commence within 60 days from the time that the informations were filed against him;
Article VI, section 4% of the Constitution of the State of California reads as follows: “No judgment shall be set aside or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Italics added.)
We have examined the record and are of the opinion the record sustains the verdict of guilty on each count and there has not been a miscarriage of justice in the present case. Hence, since it needs no citation of authorities to support the thesis that this court is bound by the mandate of the Constitution of the State of California, it follows the judgment and order must be affirmed. (People v. Scott, 112 Cal.App.2d 350, 352 [1] [246 P.2d 122], hearing denied by the Supreme Court.)
It is likewise apparent no useful purpose would be served by an extended discussion of the errors alleged by defendant, which would only be, as indicated in the cases cited in the footnotes, a repetition of principles of law well established in this state and repeatedly reiterated in opinions of the appellate courts. We therefore refrain from further discussion of the alleged errors. (Cf. Thatch v. Livingston, 13 Cal. App.2d 202, 203 [56 P.2d 549].)
The judgment and orders are, and each is, affirmed.
Moore, P. J., and Pox, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied July 20, 1955.
This contention is devoid of merit. The ease was originally set for trial November 25, 1953. On that date defendant’s attorney requested a continuance upon the ground that defendant wanted to make restitution, and that possibly defendant would plead guilty to one of the counts with which he was charged. The court continued the trial to December 23, 1953, on which date at the request of defendant the case was continued until January 14, 1954. On the latter date defendant appeared in court and requested that attorney Lowell Lyons be substituted in place of his previous attorney, and that the case be continued for trial. The court granted the motion for substitution of attorneys but denied the motion for continuance. On January 15, 1954, another motion for continuance by defendant was denied and the ease was tried, attorney Lyons representing defendant at all stages in the proceedings. The record fails to show that defendant suffered any prejudice by this procedure. (People v. Powell, 204 Oal. 109, 113 [266 P. 807]; People v. Whinnery, 55 Gal. App.2d 794, 798 et seq. [131 P.2d 33]; People v. Shaw, 46 Oal.App.2d 768, 772 et seq. [117 P.2d 34].)
It is settled that where, as in the instant case, a defendant neither objects to going to trial nor makes a motion to dismiss the action under section 1382 of the Penal Code in the trial court, error may not be predicated in an appellate court upon failure of defendant to have an earlier trial. (People V. Scott, 74 Cal.App.2d 782, 783 [169 P.2d 970] ; People v. Newell, 192 Oal. 659, 669 [5] [221 P. 622].)
The record fails to disclose that Mrs. Parr’s husband was employed by the city school board, therefore error may not be predicated upon a matter which is not within the record. (People v. PHrsehler, 98 Oal.App. 499, 501 [3] [277 P. 170]; People v. Joselyn, 29 Gal. 562, 563.)
The record discloses that the matters objected to by defendant were predicated upon evidence duly received and in most instances introduced by defendant.
This contention is devoid of merit for the reason that defendant, when the verdicts of guilty were returned on January 18, 1954, expressly asked leave to file an application for probation which was granted.
A motion for consolidation is directed to the discretion of the trial court and in the absence of a showing of prejudice, of which there is none in the instant case, an order granting the motion will be upheld by an appellate court. (People v. Johns, 69 Cal.App.2d 737, 740 [1] [160 P.2d 102].) Section 954 of the Penal Code reads in part thus: “An accusatory pleading may charge two or more different offenses connected
An examination of the record fails to disclose that defendant was denied any constitutional right or that any prejudice resulted from the trial judge’s action or conduct. On the contrary, the record discloses that defendant was accorded a full, fair and impartial trial.