People v. Damazoni

California Court of Appeal Jan 12, 1924 No. Crim. No. 734.Published

Before: Hart

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Holding. The court affirmed the defendant's conviction, holding that the record failed to support the claim that the motion to set aside the information was improperly denied and that the evidence supported the magistrate's commitment.

Issues

Whether the trial court erred in denying the defendant's motion to set aside the information.
Whether the evidence presented before the magistrate was sufficient to establish probable cause for the commitment.
Whether the defendant's plea of once in jeopardy was valid following the dismissal of one count of the information.

Disposition. affirmed

Quotations verified verbatim against the opinion

“There is not before us a reviewable record upon the question whether the court did or did not err in denying the motion to set aside the accusatory pleading.”

“The depositions taken before the magistrate clearly establish probable cause or reason for believing that the defendant committed both offenses”

“Obviously, jeopardy cannot attach under such circumstances.”

[254]

HART, J.

The information, following in that respect the complaint filed with the magistrate, was originally in two counts, the first charging that the defendant, on or about the seventh day of March, 1923, in the county of Napa, did willfully and unlawfully sell and furnish to one Prank Martinetti intoxicating liquor containing one-half of one per centum or more of alcohol by volume, etc., and the second likewise charging said defendant with selling and furnishing to Gussie Johnson and Evon Thiel like liquor, conJtaining one-half of one per centum or more of alcohol by volume, etc. Upon his arraignment, and after a futile motion to set aside the first count of the information, the defendant entered a plea of not guilty to each of the counts set up in the information. When the case was called for trial the court, upon motion of the district attorney, and with the express acquiescence of the attorney for the defendant, set aside the second count of the information. Thereupon the attorney for the defendant asked that the defendant be permitted to withdraw his plea of not guilty theretofore entered by him to the information, and the request was granted. The defendant then made a motion to set aside the information as it then stood on grounds not stated in his motion, so far as this record discloses. The motion was denied and thereupon the defendant interposed a plea of not guilty to the charge contained in the information, as set forth in the first and only remaining count thereof, and also a plea of once in jeopardy.

The trial was thereupon proceeded with upon the charge stated in the first count and the jury found against the defendant on his plea of once in jeopardy and also found him guilty as charged.

He brings this case to this court upon an appeal from the judgment of conviction and the order denying his motion for a new trial.

The defendant complains that the court erred by not granting his motion to set aside the information.

There is not before us a reviewable record upon the question whether the court did or did not err in denying the motion to set aside the accusatory pleading. As seen, the grounds of the motion are not stated, and it is, of course, impossible for us to say whether the court committed error

People v. Damazoni

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HART, J.

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