People v. Frank

[63]

CRAIG, J.

Upon charges by information of robbery and burglary, and the allegation of a prior conviction of felony in another state, verdicts of guilty were returned by the jury, and the defendant appealed from the judgments entered accordingly.

It was alleged, and the prosecuting witness testified, that the offense was committed on or about the second day of February, 1932. The defendant swore that he was not at the scene of the robbery on that date. However, said witness was not positive as to the exact date thereof, and police records proved by the People showed the same offense to have been committed on the thirteenth day of February, 1932. “The precise time at which the offense was committed need not be stated in an indictment or information, but may be alleged to have been committed at any time before the filing thereof, except where the time is a material ingredient in the offense.” (Pen. Code, sec. 955.)

It is contended that the trial court abused its discretion in denying a motion for a continuance, and that the appellant was deprived of an opportunity to produce a material witness. It was shown by affidavit that said witness had left the state, but no showing was made as to diligence in attempting to locate or communicate with him, nor as to the date of his departure, the date of his expected return, or where he might be found. The trial had been continued from various dates over a period of more than a month. Affirmative proof of facts tending to show that the ends of justice required a further continuance not having been offered, it cannot be said that it was error to deny the same.

The information charged a prior conviction of a felony in another state for which the defendant had served a term in the penitentiary. Motions were interposed to dismiss said charge, based upon an affidavit that the defendant had been pardoned, which motions were denied. A form of pardon naming another person or the defendant by a different name appears in the appellant’s brief, but it does not appear to have been signed nor offered in evidence upon the trial. The weight to be given such evidence if it really was offered was for the trial court to determine and it cannot, be afforded greater weight on appeal than it can be said to have received below. Nor did the allegation and proof of a