People v. Knight

CONREY, P. J.

is an appeal by the defendant from the judgment and from an order denying his motion for a new trial in an action wherein he was convicted of the crime of felony, to wit, lewd and lascivious conduct committed upon the body of a female person under the age of fourteen years.

The brief on behalf of appellant reviews the case in narrative form without properly separating under distinct heads the points relied upon. This is a too common fault. It should not be made necessary for the court to exhume, parcel out, and number, in order to identify the propositions upon which an appellant relies. If we have successfully discovered the grounds of appeal herein, the points relied upon are those hereinafter considered.

It is claimed that the trial court had no jurisdiction of the case for the reason that the preliminary examination was held before the city recorder of the city of Porterville, and that said city recorder “had not jurisdiction to issue a criminal complaint or warrant of arrest on a charge of felony. ” The city of Porterville is a city of the fifth class. The recorder of such a city has the powers of a magistrate. (Municipal Corporations Act [Stats. 1883, p. 265], secs. 806, 807.) As a magistrate he would have authority to conduct examinations on criminal complaints. (Pen. Code, secs. 811 and 872; Const., art. I, sec. 8.) Since it does not appear that the defendant moved to set aside the information on the ground that before the filing thereof he had not been legally committed by a magistrate, the defendant cannot now make that objection. (Pen. Code, secs. 996 and 995.) Moreover, the record does not show that the commitment preceding the

[66]

filing of the information was a commitment issued by said city recorder. In the absence of a showing to the contrary, it will be presumed that the defendant had been legally committed by a magistrate.

It is suggested that while the jury was being selected the court erroneously made a statement to the effect that “when juries are impaneled, it is for the purpose of securing verdicts, and while a juror should not surrender his individual opinion, it would be the duty of every juryman to consult freely with other jurors, and see if there is evidence to change it”; that at the same time the court erroneously refused to allow counsel for defendant to further interrogate the juror then under examination; and that the court erred in peremptorily excusing said juror at the instance of the district attorney before all of the prospective jurors then in the jury-box had been examined. The quoted statement contains no error. The court did not refuse to allow further questioning of the juror. The excusing of the juror at the time stated was a mere matter of procedure, and there is nothing to show that the procedure adopted was in any way injurious to the rights of the defendant.