People v. Darden

California Court of Appeal Nov 29, 1927 No. Docket No. 996.Published

Before: Weyand

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Holding. The court held that the defendant waived objections to the information by failing to move to set it aside under Penal Code section 995, and that evidence of illegal liquor sales occurring shortly before or after the charged period is admissible to prove the habitual nature of the nuisance.

Issues

Whether the defendant waived objections to the information by failing to move to set it aside under Penal Code section 995.
Whether the trial court erred in admitting evidence of liquor sales occurring after the date of the original criminal complaint.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Section 996 of the Penal Code specifically provides that if the objections permitted by section 995 are not made, the defendant is deemed to have waived them.”

“The gist of the offense charged was its continuing character. It must have been proven to have been “common” or “habitual,” and evidence of a common practice even at dates immediately before the date charged, and after, are properly received”

WEYAND, J.,

pro tem.

The defendant was convicted in the county of El Dorado of the crime of maintaining a common nuisance in' the town of Diamond in said county, in that he kept a place where intoxicating liquors were bartered and sold. The information charged that said nuisance was maintained from November 1, 1926, continuously “to the present time.” This information was filed June 10, 1927. The defendant entered a plea to this information without interposing any motion to set aside the same on the grounds specified in section 995 of the Penal Code, as said section then stood. Trial was had under this information on the 6th, 7th, and 8th of July, 1927.

Upon a conviction of the defendant, he moved for a new trial and upon denial of that motion and subsequent sentence by the court, defendant appealed from the order of the court denying said motion and from the judgment of conviction herein.

In appellant’s brief but one point is urged for the reversal of the judgment and order of the trial court. Ap

[183]

pellant claims that as the original criminal complaint herein was filed in the magistrate’s court on “May 31st, 1927,” it was error on the part of the trial court to admit testimonj’- of sales of intoxicating liquors after “May 31st, 1927.”

The record before us does not disclose the date upon which the original criminal complaint herein was filed in the justice’s court. It is quite true that the record discloses a tacit admission of the district attorney that such was the date of said filing, but it is only so shown in a running argument and does not rise to the dignity of a specific admission. There is no direct proof as to when the complaint was originally filed.

It is now too late to question the information in that respect. Defendant went to trial upon the charge as contained in the information. Had defendant ever attempted during the trial to introduce testimony of the date of the filing of the original criminal complaint, for any purpose in the way of challenge to that pleading, such testimony would have been subject to objection.

There was a time and a place when it might have been proper to question this information. That time was upon arraignment, and the grounds of objection are laid down in said section 995 of the Penal Code. Section 996 of the Penal Code specifically provides that if the objections permitted by section 995 are not made, the defendant is deemed to have waived them. (See

People v. Darden

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WEYAND, J.,

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