People v. MacDonald

RICHARDS, J.

This is an appeal from a judgment of conviction and from the order denying motion for a new trial of the defendant upon an indictment by the grand jury of the city and county of San Francisco, returned on December 1, 1921, charging the defendant with the crime of rape and also upon an indictment by said grand jury returned December 29, 1921, charging said defendant with having violated section 286 of the Penal Code, defining the infamous crime against nature, both offenses being charged to have been committed against one Jessie Montgomery. On motion of the district attorney and over the objection of the defendant, these two charges were consolidated and thereafter came to trial on January 10, 1921. Upon the first trial thereon the jury disagreed and was discharged. Thereafter and on January 14, 1921, the defendant moved for a change of place of trial of the cause to another county, upon the ground that a fair and impartial trial could not be had in the city and county of San Francisco. This motion the trial court denied and on January 17, 1921, the matter came on for retrial before a jury, which, at the conclusion of said second trial, found the defendant guilty of the offenses charged in said indictments. A motion for a new trial was denied, whereupon the defendant has prosecuted this appeal.

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The appellant’s first contention is that the trial court erred in its order consolidating the two charges against

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the defendant for the purposes of the trial. The court in so doing relied upon the provisions of section 954 of the Penal Code, which reads in part as follows: “The indictment or information may charge two or more' different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more indictments or informations are filed in such cases the court may order them to be consolidated.”

"We are of the opinion that the court committed no error in the consolidation of the charges embraced in these two indictments and of their trial together. The two offenses were charged in these separate indictments to have been committed upon the body of the same person. They belong, in our judgment, to the same class of offenses. They are crimes against the person and against public decency and good morals included in title IX of the Penal Code.