People v. Pilbro

PLUMMER, J.

On the eighth day of March, 1927, an information was filed in the superior court of the county of El Dorado accusing the defendants Charles Pilbro and Frank X. Walsh of the crime of wilfully and unlawfully manufacturing intoxicating liquor, etc., in said county. Both of the defendants, upon trial, were convicted. The defendant Walsh interposed a motion for new trial, which motion was denied, and thereupon said defendant appealed to this court from the order denying his motion for a new trial and from the judgment entered against him in said cause.

No contention is made that the evidence is insufficient to warrant the verdict of the jury, and an examination of the record shows that no such contention could be reasonably urged. We are presented upon this appeal with certain alleged errors relative to the order of the court denying the appellant’s motion for a separate trial, errors in the impanelment of the jury, and errors in the admission and in the argument of counsel for the People made to the jury.

The record on appellant’s motion for a separate trial shows the following: That on the eighth day of March, 1927, the appellant served a notice in these words (omitting the title) :

“Take notice that on Friday, the 11th day of March, 1927, at the court room at the court house in Plaeerville, El Dorado County, California, at the hour of 10 o’clock a. m., of said day, the above named defendant,' Frank X. Walsh, will move the court, and said defendant hereby moves the court for a separate trial in the above entitled action. That said motion will be made and based upon the record and files in this cause.”

“(Signed) E. Fitzgerald,

“Attorney for Frank X. Walsh.”

[791]

In

People

v.

Anderson,

59 Cal. App. 408 [211 Pac. 431], this court had before it for consideration an almost identical motion, where the record, just as in this case, shows absolutely nothing further. It was there held that while, under section 1098 of the Penal Code, as amended in 1921, the court may, in its discretion, order separate trials of two or more defendants jointly charged, it is not bound or required to do so upon the mere request of any one of the defendants. On page 43 of the opinion in that case will be found cited numerous authorities to the effect that where the record shows nothing further than a mere motion, there is nothing upon which an appellate court can say that the trial court did not properly exercise its discretion.