People v. Ponchette

[400]

SHAW, J.

Defendant was convicted of the crime of murder in the first degree and sentenced to imprisonment for life. He appeals from the judgment and an order denying his motion for a new trial.

The alleged killing occurred in the city of San Diego on the night of June 15, 1915, at which time one John Douglas was fatally shot.

No testimony was tendered by anyone who witnessed the shooting, the evidence connecting defendant with the crime being largely of a circumstantial nature. Its character, however, is such that when considered in connection with statements proven to have been made by defendant, to the effect that he shot and robbed the deceased of a sum of money, was well calculated to leave little doubt in the minds of the jurors that defendant committed the crime with which he was charged.

The first error assigned relates to the action of the court in refusing a continuance of the trial upon application of defendant. The record shows that the cause was set down for trial on December 7, 1915. About 4 o’clock P. M. of said day, and after a jury had been impaneled to try the case, defendant applied to the court for a postponement of the trial upon the ground of the absence of Ben Eronas, a witness for whom a subpoena had been issued on November 26th, but not served. Defendant’s affidavit was offered in support of the application, from which it appeared that Eronas, as defendant was informed and believed, had gone to Imperial County; that Eronas, if present, would testify that defendant spent the night upon which the.crime was committed, to wit, June 15, 1915, at the house of said Eronas in the town of Escondido, distant some thirty or forty miles from San Diego, and that said fact could not be proved by any other witness. It was further averred by defendant that if the trial was continued one month affiant believed that he could have said witness present to testify as aforesaid. Section 1052 of the Penal Code provides that "when an action is called for trial, or at any time previous thereto, the court may, upon sufficient cause, direct the trial to be postponed to another day. ’ ’ The application for continuance, however, was not made when the ease was called for trial, as provided in this section, but, as shown by the record, made after the jury had been impaneled and the trial had proceeded, presumably for a day. Not only so, but