People v. Mullaley

California Court of Appeal Apr 18, 1911 No. Crim. No. 149.Published

Before: Burnett

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Holding. The court affirmed the defendant's larceny conviction, holding that notary publics may verify criminal complaints, lost deposition transcripts may be substituted with certified copies, and the trial court properly excluded irrelevant or procedurally improper testimony.

Issues

Whether a criminal complaint verified before a notary public is legally sufficient.
Whether a certified copy of a lost deposition transcript is admissible at trial.
Whether the trial court erred in excluding defendant's testimony regarding his belief of property ownership.
Whether the trial court erred in excluding evidence regarding the route taken by a witness or hearsay statements made by a witness after the offense.

Disposition. affirmed

Quotations verified verbatim against the opinion

“since the statute does not designate any particular officer before whom the complaint must be verified, it necessarily follows that the verification may be attested by anyone authorized to administer an oath.”

“It is clear that all the objections urged to the admissibility of the deposition are entirely without merit.”

“What he may have assumed after the offense was complete would be no defense to the charge”

Synopsis

APPEAL from a judgment of the Superior Court of Colusa County, and from an order denying a new trial. H. M. Albery, Judge.

The facts are stated in the opinion of the court.

BURNETT, J.

Defendant was convicted of the larceny of a yearling bull and sentenced to the penitentiary for the term of three years.

1. There is no merit in the contention that the court should have set aside the information for the reason that the complaint filed in the justice court was verified before a notary public. Every notary public has power to administer oaths or affirmations. (Code Civ. Proc., sec. 2093.) And, since the statute does not designate any particular officer before whom the complaint must be verified, it necessarily follows that the verification may be attested by anyone authorized to administer an oath.

(Dunn

Ketchum,

38 Cal. 99.) Every clerk of any court is placed upon the same footing in this respect as a notary, and it has been held that, under the authority given by said section 2093 of the Code of Civil Procedure, the clerk of a police court has authority to administer an oath to a person verifying a complaint, and a motion to set aside an information based thereon, for want of a legal commitment under such complaint, owing to the absence of a legal verification thereof, cannot be sustained.

(People

Vasalo,

120 Cal. 168, [52 Pac. 305];

People

Burns,

121 Cal. 529, [53 Pac. 1096].)

Besides, if the verification had been illegal, the objection could not avail after a regular preliminary examination and commitment of the defendant.

(People

Gregory,

8 Cal. App. 738, [97 Pac. 912].)

2. Edward de St. Maurice, the official reporter of the superior court of Colusa county, took in shorthand the testimony and proceedings at the preliminary examination, and thereafter transcribed and filed the same with the clerk of said superior court. During the trial the prosecution made proper showing that one Charles Schnitter, who had testified at the preliminary examination, could not be found in the state and; upon attempting to offer the deposition of said witness, it appeared that the original transcript of the proceedings at the preliminary examination had disappeared and could not

People v. Mullaley

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Synopsis

BURNETT, J.

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