People v. Calkins

California Court of Appeal Jul 1, 1935 No. Crim. 182Published

Before: Marks

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Holding. The court affirmed the defendant's conviction for criminal libel, finding that the evidence supported the verdict and that the defendant's procedural and constitutional challenges were without merit. The court held that separate publications of libelous articles constitute distinct offenses, precluding a defense of former jeopardy based on an acquittal for a different article.

Issues

Whether the trial court erred in denying the motion to set aside the information.
Whether the trial judge's comments to the jury exceeded constitutional authority.
Whether the defendant's acquittal for a prior libelous article barred prosecution for a subsequent, distinct article.
Whether the reading of the full information to the jury constituted prejudicial error.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The three orders latterly specified are not- appealable orders and the attempted appeal from them is dismissed.”

“Two separate libels were charged and the acquittal of one was not a bar to prosecution for the other.”

“The judgment and order appealed from are affirmed.”

MARKS, J.

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. V. Buckner was sheriff of Kings County. He had been . defeated for reelection and at the time of the publication of the article in question was either out of office or was serving

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the unexpired portion of his term. The article was a vicious attack upon him and his conduct in office. It accused him of the commission of crimes and acts of malfeasance and misfeasance in office which need not bé specified. Unless the charges made were founded on fact and were true they constituted an unwarranted and unjustified libel of the worst kind.

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. Calkins

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MARKS, J.

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