People v. Van Zandt

SCOVEL, J.,

pro tem.

The defendant in this action was convicted in the Superior Court of Riverside County of the crime of driving an automobile while under the influence of intoxicating liquor. The information alleges that the defendant on December 11, 1931, at the county of Riverside, state of California, did wilfully and unlawfully drive an automobile along and over that certain public highway in the county of Riverside, to wit, State Highway No. 26, the defendant being then and there and while so driving and operating said automobile, under the influence of intoxicating liquor. After arraignment the defendant filed a demurrer and motion to dismiss the information on the ground that he had not been legally committed by a magistrate for the reason that it did not appear in the transcript of the preliminary examination in what township the alleged crime was committed or whether or not State Highway No. 26 was a public highway. Nowhere in the transcript on this appeal, however, does the evidence produced at the preliminary examination appear. The demurrer was overruled and the motion to set aside the information denied. Thereupon the defendant pleaded not guilty and the case was se.t for trial before the regular jury panel. The cleric’s minutes of the trial show that the regular jury panel was present at the trial and that defendant was duly convicted, and no question is raised as to the sufficiency of the evidence to sustain their verdict. A motion for new trial was thereafter filed

[522]

by defendant on the ground that defendant had not been tried by the regular jury panel supported by the affidavit of defendant’s counsel that the jury who tried the action was a special venire. The motion was denied and judgment pronounced. Defendant has appealed and as a basis for his appeal raises three points.

The first point is that the court in making a statement of the case prior to the examination of the jury invaded the province of the jury by making a statement of fact. The statement objected to is as follows:

“The Court: Members of the Jury, this is an action entitled The People of the State of California, Plaintiff, vs. Adolph Van Zandt, Defendant, in which the defendant Adolph Van Zandt, is charged with a felony, to wit, driving an automobile while under the influence of intoxicating liquor on the 11th day of December, 1931, in this county, being State Highway No. 26, the offense happening near Branning.