People v. Murphy

KNIGHT, J.

There are two appeals being prosecuted by the defendant in this case, both having been taken from orders made after final judgment. Although said appeals come before us on separate records, we think the questions arising. thereunder may be considered and disposed of in one opinion.

The appellant, Edmund Murphy, was convicted of the crime of rape, and upon appeal the judgment of conviction

[178]

was on July 12, 1921, affirmed.

(People

v.

Murphy,

53 Cal. App. 474 [200 Pac. 484].) On August 9,-1924, a motion was presented to the trial court, on behalf of appellant, to annul said judgment upon the ground that part of the trial took place after the hour of 12 o’clock, noon, on Saturday, December 18, 1920. Upon hearing the evidence submitted by the respective parties, said motion was, by the trial court, denied. The defendant appealed. On October 6, 1924, a second motion was made for the annulment of said judgment upon the grounds that the grand jury which found and presented the indictment upon which appellant was subsequently tried and convicted, had been illegally selected, drawn, and impaneled, and that said indictment had been indorsed “a true bill” and signed by a person other than the foreman of said grand jury. Said motion was, after a hearing, also denied, and from the order denying the same the defendant has appealed.

Irrespective of the merits of the contention made by appellant in support of these motions, we are of the opinion that the alleged errors complained of were not jurisdictional, but, if errors at all, constituted nothing more than mere errors at law, which occurred prior to the pronouncement of judgment in the case and therefore should have been presented for review, along with the other assignments of error upon which the appeal was taken from the judgment, and we believe that the appeals now before us might be properly disposed of upon that ground; however, we have examined the contentions made by appellant and find that they would be unavailing to appellant, even if seasonably presented.

Regarding the claim that part of the trial took place after the noon hour on Saturday, December 18, 1920, the record discloses that upon arrival of the noon hour on that day the court called attention of appellant’s counsel to the fact that it was 12 o’clock, to which appellant’s counsel replied: “We will make no objection to finishing with this witness.” The court then said: “All right. On motion of the defendant we will continue. ...” Thereafter the witness, who was under examination by appellant’s counsel, was asked only three short additional questions, by appellant’s counsel, and after some discussion between counsel,