People v. Weaver

By the Court, Rhodes, J.: The defendant demurred to the indictment on four grounds: First, that the means used in the commission of the offense are not stated; second, that it is not charged that the homicide was committed contrary to the provisions of the “ Penal Code;” third, that it is not stated that the names indorsed upon the indictment are all the witnesses who were examined by the grand jury; and, fourth, that the indictment was not transferred from the County Court to the District Court.

Had this indictment been found while the Criminal Practice Act was in force, it would have been held sufficient, so far as it respects the allegations of the-means by which the murder was committed. (People v. Cronin, 34 Cal. 191.) Neither the sections of the Penal Code referred to by the defendant, nor any other section which we have examined, [108]have changed the rules of pleading so as to require a more specific allegation of the means employed in the commission of an offense, than-was necessary under the former statute.

The remaining grounds of demurrer" are not relied upon here, and we are of the opinion that they are not well taken.

It is urged that the indictment is objectionable because it charges two offenses, to wit: assault and murder. The objection, even it were valid, will not be entertained, because it is not presented by demurrer. (SS. 1,004, 1,012.) But the objection is wholly untenable.

The Court denied the defendant’s motion for continuance, and this ruling is assigned for error. This question cannot be presented in any other- manner than by means of a bill of exceptions. The defendant’s affidavit, which is relied upon in argument, cannot be considered, as it is not even alluded to in the bill of exceptions. It mentions an affidavit of John Weaver, and the record contains an affidavit made-by John Weaver, but there is nothing in the bill of exceptions or the affidavit, which shows that this affidavit was used on the hearing of the motion. The affidavit should have been embodied in the bill of exceptions, or, in some mode, clearly identified as having been read on the hearing of the motion. But, conceding that the affidavit in the record can be considered, and that the testimony therein mentioned was material, the defendant might have moved for an attachment for the defaulting witness, but the affidavit was not sufficient to require an order of continuance. The witness had been served with a subpena within the county, and it did not appear that he could not readily have been reached by an attachment.