People v. Rodrigo
Before: McKinstry
Synopsis
Criminal Law — Setting aside Information.—Mere irregularities or in-formalities before the committing magistrate, which do not deprive the defendant of any substantial right, will not warrant the quashing of an information.
Id.—Preliminary Examination—Omission to Examine Witness as to his Business. — The omission of the district attorney and magistrate, on the preliminary examination, to ask a witness for the prosecution his profession or business is not prejudicial to the defendant.
Id. —Evidence. —Reputation of Defendant. —The defendant was prosecuted for an assault with a deadly weapon. On the trial, a witness was asked to state the general reputation of the defendant for peace and quietness in the county, so far as he knew. The witness had not stated that he lived in the county or knew the general reputation of the defendant therein. The court excluded the evidence. Held, that the ruling of the court was proper.
Id.—Deadly Weapon Defined.—The court instructed the jury that a deadly weapon “is any weapon or instrument by which death maybe produced, or would be likely to be produced, when being used in the manner in which it may appear it was used in the affray. The jury are the judges as to whether the weapon was or was not a deadly weapon.” Held, that the instruction was correct.
Id.—Instructions—Reasonable Apprehension of Injury.—The court refused to instruct the jury that they should acquit the defendant if they entertained a reasonable doubt that he made the assault under a reasonable apprehension of great bodily harm. Held, that the refusal was proper, as the defendant could not justify the assault unless the use of a deadly weapon was necessary to prevent the injury.
Ip.—Burden of Proof—Reasonable Doubt.—In such a prosecution, if the defendant relies upon no separate, distinct, or independent fact, but confines his defense to the original transaction on which the charge is founded, with its accompanying circumstances, the burden of proof never shifts, but remains upon the government throughout the case to prove the act a criminal one beyond a reasonable doubt.
Id.—Evidence—Impeachment of Witness — Judgment and Sentence for Felony. — The party seeking to impeach a witness may ask him on cross-examination whether a judgment and sentence had been pronounced against him for a felony.
McKinstry, J. The defendant was found guilty of an assault with a deadly weapon.
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.
It is urged that the testimony taken before the committing magistrate was not taken as prescribed by section 869 of the Penal Code. But our attention has not been called tó any particular defect or irregularity in the mode of taking the depositions, or in certifying the same, or in the order of commitment.
The commitment is in accordance with the statute. (Pen. Code, sec. 872.)
Each deposition is signed by the witness. Each is signed and declared “ approved ” in writing by the magistrate, which is a certification. (Pen. Code, sec. 869, subds. 4, 5.) Subdivision 3 of the same section was complied with. Each of the deposing witnesses stated his name and place of residence. (Subd. 1.) All the witnesses (except T. B. Hudson) stated their respective occupations or professions. The statute was complied with in every substantial respect.
Section 995, which authorizes and directs an information to be set aside, on motion of a defendant, when the defendant has not been “ legally committed,” does not require the information to be set aside for every informality or irregularity before the magistrate. To justify the quashing of the information, it must at least appear that the defendant was deprived of some substantial right. In the case, at bar the witness Hudson was cross-examined by the defendant when his deposition was taken before the magistrate. The mere omission of the district attorney or justice of the peace to ask of the wit[603]ness his profession nr business could not have injured the defendant.
We cannot say the court erred in sustaining the objection to the question, asked of the witness W. B. Baker, —“What is his (defendant’s) general reputation for peace and quiet in this county, so far as you know?” The witness had not stated that he lived in the county or knew the defendant’s general reputation in the county.
The instruction given by the court defining “ deadly weapon” is not subject to the objection urged by counsel for appellant.
The court below was justified in refusing to give the instruction asked by the defendant, by which the jury was told it was their duty to find the defendant not guilty if they entertained a reasonable doubt that he acted under a reasonable apprehension of great bodily injury. ■
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