People v. Walsh

NOURSE, J.

The defendant and appellant was tried on an information charging him jointly with one Dorney with the commission of the crime of burglary. The two defendants were tried together and the trial resulted in a verdict of guilty as to the defendant Walsh and in a disagreement as to the defendant Dorney. The defendant Walsh has appealed from the judgment following the verdict and from the order denying him a new trial. The appeal is presented on a record prepared under section 953a of the Code of Civil Procedure.

It would serve no purpose to outline the facts of the case as it is conceded that there was sufficient competent evidence before the jury to support the verdict of guilty. The grounds urged by the appellant for a reversal cover assignments of error which are claimed to have occurred during the course of the trial. These grounds will be considered in the order presented.

First: It is claimed that the trial court erred in denying appellant’s motion to set aside the information on the ground that the committing magistrate had denied appellant the right of counsel at the preliminary hearing. Appellant cites

People

v.

Napthaly,

105 Cal. 641 [39 Pac. 29], but the case is inapplicable because the appellant here was represented by counsel at the first hearing and was given the opportunity of accepting other counsel after a reasonable continuance had been granted by the committing magistrate. The ease on the facts is similar to the case of

People

v.

Caballero,

41 Cal. App. 146, 149 [182 Pac. 321], and the rule in that case supports the action of the trial court in denying appellant’s motion.

Second: The appellant urges that the trial court erred in overruling his demurrer to the information. The point raised was that the information was insufficient because it did not state whether the alleged burglary had been committed in the daytime or in the night-time and because ■ it failed to detail the facts of the larceny which it alleged the appellant intended to commit when he made the entry. On each ground the point has been ruled adversely to ap

[436]