People v. Beam

Morrison, C. J. The information charges the defendant with the crime of an assault with a deadly weapon, with intent to murder, committed as follows : “ The said William H. Beam, on or about the 10th day of May, A. D. 1884, at the county of Del Norte, State of California, in and upon one Samuel Win-ton, then and there being, an assault did make with a deadly weapon, with intent then and there the said Samuel Winton unlawfully, willfully, feloniously, and of his malice aforethought to kill and murder, contrary to the form of the statute,” etc.

The first point made in appellant’s brief is, “ that the court erred in refusing to set aside the information in said action on the motion of defendant, for the reason that the said information was not based on any charge for which the said defendant has been held to answer.”

It appears in the transcript, that a complaint was duly made against the defendant before one D. S. Sartwell, a justice of the peace, charging the defendant with the crime alleged in the information; witnesses were examined before said magistrate, and the defendant was held to answer the charge by the justice of the peace, on the 19th day of May, 1884. The information was filed by the district attorney on the 27th day of the same month. So far as the record shows, the preliminary steps were regular, and such as to warrant the district attorney in filing the information. (Penal Code, § 809.) There was no error in denying the motion to set aside the information on the ground upon which the motion was made.

The next alleged error is “ that the court erred in overruling the demurrer filed 'in said action, for in this information two offenses were definitely charged against the defendant.” We are unable to discover from the information what the two offenses [396]are, and defendant’s attorney has failed to point them out in his brief. The information charges an assault by the defendant on one Samuel Winton, with a deadly weapon, with intent to murder, and there is no other crime charged in it. The information is good, and sufficient under the code. The demurrrer was, therefore, properly overruled.

The next point made is “ that the court erred in refusing defendant a continuance in the case.” The defendant, in support of his motion for a postponement of the trial, made an affidavit showing that one Zadok Harris was an important and material witness for him on the trial of the case ; that Harris had been duly subpoenaed, but was not in attendance; and that, therefore, the defendant could not safely proceed with the trial of the case. The motion was denied, and the ruling of the court below on this application is assigned as error. The record shows that the case was set down for trial on a certain day, with the consent of the defendant, and there was sufficient time between that day and the day fixed for the trial, for the defendant to have taken the deposition of the absent witness, under section 1336 of the Penal Code. The witness was sick, suffering from the effects of a serious gun-shot wound, and there is no doubt that his deposition could have been taken by the defendant under the foregoing section of the code. No attempt was made to procure his deposition; and the attorney general insists that such failure constituted such want of proper diligence as justified the court in denying defendant’s motion for a postponement of the trial.