People v. Putman

VAN DYKE, J.

Defendant was informed against hy the district attorney of Sacramento county for the crime of murder, and was tried and convicted of murder in the first degree. He

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thereupon moved for a new trial, which was denied, and he was sentenced to death by hanging. From the judgment and order overruling his motion for a new trial the defendant prosecutes this appeal.

The evidence discloses that the defendant was a convict in the state prison at Folsom; that on May 15, 1899, within the prison walls, defendant walked past a fellow-convict named Showers, who was sitting on a doorstep, wheeled around, grasped Showers by the chin with his left hand, pulled his head around, and stabbed him six times with a knife, from the effects of which Showers died in a few minutes thereafter.

The first point made on the part of the appellant is that the court erred in overruling the defendant’s motion for a continuance of the trial. The motion is based on affidavits of one of defendant’s counsel. Pretty much everything stated in the affidavit was upon information and belief. The grounds for a continuance were: 1. Absence of witnesses; and

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Lack of sufficient counsel. The names of the witnesses, except as to one Abe Majors, are not given, and it is stated that said Majors was a convict and to be executed within ten days from the date of the affidavit, and his testimony was sought to be procured for the purpose of refuting an anticipated theory of the prosecution. There was no showing of diligence in the affidavit, nor that the continuance was not sought for mere delay. With reference to obtaining additional counsel the affidavit sets forth that defendant’s mother was endeavoring to negotiate for the services of an attorney other than the two appointed by the court to defend the appellant. The affidavit was clearly insufficient on both of the grounds, and it was not an abuse of discretion on the part of the trial court to deny the motion. Besides, it appears that the defendant was zealously and ably defended by the counsel who represented him, and was allowed an opportunity to, and did, procure the attendance of witnesses. The cause was set down for trial on June 5, 1899, and prior thereto the court permitted the defendant to withdraw his plea of not guilty in order to file an objection to the sufficiency of the information. The court having overruled the objection to the sufficiency of the information, and the defendant having again entered his plea of not guilty, moved the court to continue the cause to