People v. Owens

WHITE, J.

This appeal involves two prosecutions instituted against the same defendant in the Superior Court of Los Angeles County and the validity of proceedings, judgments and orders made therein. Although the cases were separately tried in the superior court, they are by stipulation consolidated on appeal and presented on one set of briefs.

The First Case

In this prosecution, instituted by information No. 50759 filed by the district attorney on December 28, 1932, the defendant was accused in five counts of the crime of violating subdivision 3 of section 337a of the Penal Code. Following the entry of not guilty pleas to all counts, the case proceeded to trial before a jury on April 17, 1933, resulting in the conviction of defendant on each of the five counts. On April 24, 1933, which was the time fixed for pronouncing judgment, the defendant interposed a motion in arrest of judgment which was argued and submitted. The clerk’s transcript reflects that on the next day the following proceedings occurred.

“Defendant’s motion for an arrested judgment on the grounds that the information fails to state facts sufficient to constitute a public offense is granted.

“Defendant is discharged.

“The District Attorney gives oral notice of appeal.”

On the next day, April 26, the district attorney, without the presence of the defendant, appeared in court, and the following proceedings ensued as shown by the clerk’s transcript :

“The District Attorney withdraws the oral notice of ap

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peal made on April 25, 1933. On motion of District Attorney, a new information is filed.

“Bench warrant is ordered issued for the appearance of this defendant... . . ”

It should here be noted that the “new” information charged the same offenses as were charged in the original information as to which the motion in arrest of judgment was granted.

After the entry of pleas of not guilty and once in jeopardy to the second information, the trial was set for June 14, 1933, but when the ease was called for trial the defendant failed to appear and a bench warrant was issued for his apprehension. Finally, on December 15, 1944, the ease proceeded to trial before the court sitting without a jury, again resulting in the conviction of the defendant on all counts of the information. On the plea of once in jeopardy the court found for the People. Defendant interposed a motion for a new trial, which was denied. From the judgment and the order denying his motion for a new trial defendant prosecutes this appeal.