People v. McKenzie

STURTEVANT, J.

The grand jury of Alameda County returned an indictment against the defendant and another charging them with subornation of perjury. John W. McKenzie pleaded guilty and applied for probation; the cause was referred to the probation officer, who made an investigation and filed a report; before the hearing on the report was had the defendant moved to withdraw his plea of guilty and to enter a plea of not guilty; the motion was denied; the application for probation was heard and denied, and judgment on the indictment was entered. From the judgment and from the orders denying the two motions the defendant has appealed.

For the purpose of making clear the facts contained in this record it should be stated that the defendant was by the grand jury, under a separate indictment, accused of the crime of perjury and that the same proceedings were had and the same appeal was taken; and that all of said proceedings were had consecutively.

Both indictments were returned and filed July 7, 1926. Both pleas were entered July 9, 1926. The application for probation was made in each case on the latter date. Proceedings in each case were, on the request of the defendant, or with the consent of the defendant, continued from time to time until August 24, 1926. When the cases were called on that date the attorney for the defendant answered ready. Immediately thereafter the defendant, in person, stated to the court: “I pleaded guilty to the charge of subornation of perjury to the court, and this was through an understanding with the district attorney’s office, to convict the other defendants, Marion Scott and George Holmden, and I find I have convicted myself of subornation of perjury, and I desire, under the circumstances, to change my plea to not guilty.” Thereafter the defendant’s attorney stated to the court that the defendant had stated to him that the pleas were entered because the prosecuting officers had represented

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to the defendant that he would be used as the state’s witness and would not be sent to prison. On that statement the cases were continued for a hearing on the question as to whether the prosecuting officers had made such statements.

Neither at the time above mentioned nor at any other time did the defendant make any formal assignments of error in the trial court. He made such assignments and filed the same with the clerk on the day he took an appeal. In his brief he repeated those assignments, six in number. However, he did not argue any one of those points, he did not cite those parts of the record which he claimed supported him, and he did not cite any authorities; but he then proceeded to state three points.