People v. Upton

WEYAND, J.,

pro tem.

Defendant was accused of the crime of escaping from a prison camp, in Trinity County, he being a prisoner of the state of California under the jurisdiction and control of the state prison at Folsom, California.

[448]

He appeared at the trial without an attorney, and he appears upon this appeal in his own behalf, and by lengthy brief presents his claims for a reversal of the judgment of the lower court.

Three of the points presented by appellant herein are identical with the claims made in

People

v.

Vanderburg, ante,

p. 217 [227 Pac. 621], These relate to the following alleged errors of the trial court, or objections advanced:

That section 106 of the Penal Code is unconstitutional;

That Sacramento County superior court had no jurisdiction, and

That the evidence failed to prove that the guard on duty was a “prison guard.”

These points were, in the Vanderburg case, decided against the defendant, and a like ruling will be made in this case.

In addition to these claims for reversal, defendant in the instant case makes the additional claims: 1. That he is prosecuted for an offense other than the one for which he was held to answer; 2. That he was denied process for witnesses to his injury, and, 3. That there was a material variance between the allegations of the information and the proof adduced, in that in the information it was alleged that defendant escaped “in said county of Trinity” and “while at work outside such prison,” while the proof clearly showed an escape within the county of Shasta, and that the escape occurred while returning from work outside such prison.

1. The defendant was held to answer in the regular manner, and while it is disclosed that the justice of the peace who acted as committing magistrate did make an oral order at the close of the preliminary hearing, which might have been at variance with the facts adduced at said hearing, yet it is in the record that upon making the oral order, the justice made the usual written order holding defendant to answer, and it was to the effect that defendant be held for the offense “in the within depositions mentioned.” The record does not disclose a formal motion to set aside the information. After arraignment and plea was taken, defendant, on his own motion, was permitted to withdraw his plea of not guilty “for the purpose of entering the demurrer.” The defendant presented his demurrer orally in the trial court, and this oral demurrer contains the only pretended assignment, allegation or statement, that raises this particular objection, be