People v. Grace

HAHN, J.,

pro tem.

The defendant and appellant was found guilty of robbery upon each of three counts contained in an information filed by the district attorney of Los Angeles County.

From the judgment of conviction and an order denying his motion for a new trial he makes this appeal, and urges three grounds for a reversal.

First. That the court erred in refusing his request that the trial of his case be transferred from department 28 of the superior court, sitting at Long Beach, to some department of a superior court sitting in Los Angeles city.

Second. That the evidence in the case is insufficient to support the verdict of guilty.

[631]

Third. That the court erred in permitting the district attorney to read the testimony of one Mrs. McClure, given at the preliminary examination.

Upon the first point counsel for appellant contents himself with a brief statement that “the facts presented upon the motion for a transfer of said cause raised an issue of fact which should have resulted in the granting of the motion for defendant.” The only facts presented on this point, according to the record, are contained in a short affidavit of defendant’s counsel that he was attorney for the defendant in a previous trial of the case, and at that time “there was great difficulty experienced in drawing a jury to try the said issue, by reason of local prejudice against the said defendant; that affiant is informed and believes and upon such belief alleges that it would be impossible to draw a jury from any panel drawn from the city of Long Beach, before whom this defendant could secure a fair and impartial trial.”

Conceding, for the moment only, that section 1033 of the Penal Code is susceptible of the interpretation which appellant places on it, so as to entitle one about to be tried in one department of the superior court of a county that may be sitting in one portion of the county to have his case transferred for trial to another department of the same superior court sitting in another part of the county, there is lacking that showing of conditions which would prevent him from having a fair and impartial trial in the department where his case is set for trial. Section 1034. of the Penal Code requires such a showing of matters which, if true, would justify the court in finding that the defendant could not have a fair and impartial trial. Manifestly, the affidavit presented as a basis for the motion does not begin to meet the requirements of the statute.