People v. Martin

SHENK, J.

The defendants were jointly tried in the superior court of Orange County on an information charging them with contributing to the delinquency of a minor, one Ivory Shields, a youth over the age of twenty years, in that they did solicit, induce and procure said Shields to purchase for them eight ounces of intoxicating liquor, in violation of the Wright Act, and did furnish and give said intoxicating liquor to said Shields to drink.

On March 24, 1925, the jury returned a verdict finding the defendants guilty as charged in the information. On the same day the defendants presented a motion for a new trial on numerous grounds. The motion was denied and the defendants gave immediate notice of appeal from the order. The court thereupon continued the matter to March 27th for judgment and sentence or to entertain an application for probation. On March ,27th the defendants presented a new motion for a new trial on substantially the same grounds set forth in the motion which was denied on March 24th, with the additional specification, however, that the jury received evidence out of court. The court permitted the new motion to be presented and received oral evidence on the additional specification to the effect that two of the jurors who tried said cause were present at the preliminary examination of the defendants and had heard the evidence there presented. After the taking of said evidence was concluded the court granted said second motion for a new trial. The matter is now before us on.appeal by the people from the order granting the said motion.

[242]

It is the contention of the attorney-general, among other things, that the order appealed from was a nullity and in nowise affected the status of the case with respect to the order denying the first motion. The point is well taken. There is no statutory or other authority for the presentation or consideration of a second motion for a new trial under the circumstances here shown. There was no showing that the order denying the first motion was entered prematurely or by inadvertence, as was disclosed in

Robson

v.

Superior Court,

171 Cal. 588 [154 Pac. 8], nor was there any application for relief or showing pursuant to section 473, Code of Civil Prcedure, and at the time the second motion was made the time for pronouncement of judgment had not expired. If such a proceeding were sanctioned the results pointed out in