People v. Durand (1905) · DecisionDepot

People v. Durand

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal May 29, 1905 No. Crim. No. 5.Published

Before: Chipman

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Holding. On an appeal from a judgment alone, the court cannot review the sufficiency of the evidence to support a verdict if there is some evidence to support the finding; a motion for a new trial is required to challenge the sufficiency of evidence.

Issues

Whether the sufficiency of evidence can be reviewed on an appeal from a judgment alone without a motion for a new trial.
Whether an appellate court may review the evidence when there is some evidence supporting the verdict but the defendant claims it is insufficient.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court cannot look to the testimony brought up by a bill of exceptions on an appeal from the judgment alone, unless authorized to do so on a motion for a new trial”

“In the former case, if the instruction is correct as matter of law, the court cannot, on appeal from the judgment alone, look into the record to examine into insufficiency of the evidence, but defendant must move for a new trial”

Synopsis

The facts are stated in the opinion of the court.

CHIPMAN, P. J.

Defendant was convicted of the crime of assault with a deadly weapon. He appeals from the judgment on a bill of exceptions duly settled and allowed. There

[72]

was no motion to instruct the jury to acquit when the prosecution rested, nor for a new trial, and there is in the record no exception taken to any ruling or decision of the court. The court instructed the jury as follows: "That in order to convict the defendant of the crime charged in the complaint, it must appear from the evidence, beyond a reasonable doubt, that the alleged assault was made with a deadly weapon, and that it is incumbent on the prosecution to prove beyond a reasonable doubt and to a moral certainty that the weapon mentioned in the information was in fact a deadly weapon.” The point made by defendant is, that although the instruction is a correct statement of the law, the evidence is insufficient to establish as a fact that the weapon with which defendant was assaulted was a deadly weapon, and hence the verdict was in violation of the instruction given.

The attorney-general contends that the sufficiency - of the evidence may not be inquired into on this record.

It was held in

People

Keyser,

53 Cal. 183, that the defendant may, upon an appeal from the judgment without having made a motion for a new trial, rely upon any of the grounds of exception mentioned in section 1170 of the Penal Code, and, of course, we may add, when the record contains a bill of exceptions, he may likewise rely upon any of such grounds. These grounds are stated in three paragraphs of the section, the first two of which can have no possible reference to the point made by defendant. The third paragraph also contains matter equally inapplicable to this ease, and the only ground of exception at all applicable is an error of the court “in charging or instructing the jury upon the law on the trial of the issue.”

Section 1181 of the same code enumerates in several different paragraphs the cases in which the court may, when the defendant has been convicted, grant him a new trial. It will be seen from a comparison of these two sections, as was said in

People v. Durand

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Synopsis

CHIPMAN, P. J.

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