People v. Bush (1887) · DecisionDepot

People v. Bush

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jan 25, 1887 No. No. 20239Published

Before: Foote

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Holding. The court held that a change of venue does not require the transmission of prior bills of exception or jury charges, and that a trial court may properly order a jury view of a crime scene in another county.

Issues

Whether a change of venue requires the transmission of all prior trial records, including bills of exception and jury charges.
Whether a trial court has jurisdiction to order a jury view of a location outside the county of trial.
Whether a jury instruction regarding the credibility of witnesses based on their relationship to the defendant is proper.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Such papers were not essential to give the Superior Court of San Bernardino County jurisdiction to try the defendant on the charge alleged against him”

Synopsis

Appeal from a judgment of the Superior Court of San Bernardino County, and from an order refusing a new trial.

During the progress of the trial, it was shown by a witness for the prosecution that the nieces and son of the defendant were present at the homicide. The defendant, at the close of the case for the people, moved the court to compel the prosecution to call such persons as its witnesses. The court refused the request, to which ruling the defendant excepted. The further facts are stated in the opinion.

Foote, C. The defendant appeals from a judgment of conviction of murder in the second degree, and from an order refusing him a new trial, made in the Superior Court of San Bernardino County.

He had been previously tried upon the charge of murder, and convicted in the Superior Court of San Diego County of that crime, in the first degree, and on appeal [605]to this court the judgment rendered against him was reversed. (68 Cal. 623.)

Thereupon he obtained a change of the place of trial of his cause to the first-named county.

He now claims that the Superior Court of that county did not have jurisdiction to try him, for the reason, as he alleges, that the certified transcript of the record sent from San Diego County, on the change of venue to San Bernardino County, did not contain certain bills of exception taken on the trial of the case in the former county for purposes of appeal to this court, nor certain charges given to the jury on the former trial by the judge of the court then trying the cause. This position is not tenable.

Such papers were not essential to give the Superior Court of San Bernardino County jurisdiction to try the defendant on the charge alleged against him; they are not, in the contemplation of the statute, a part of the “record” necessary to be transmitted on a change of the place of trial of such a cause de novo. (Pen. Code, sec. 1036.)

This view of the meaning of the statute, viz., that the words “copy of the record, pleadings, and proceedings” require the transmission on change of the venue of a cause only such papers as may be essential to the proper trial of the defendant's case de novo, is strengthened by the presence in the statute of the words “ including the undertakings for the appearance of the defendant and witnesses.”. As the undertakings might in a certain contingency be necessary, those words relating to them were evidently added out of abundant caution, so that not only the papers necessary to the proper trial of the defendant should be in the record, but also any papers which might be contingently necessary if forfeitures of the undertakings should be desired.

If the words first cited meant to include the papers for which the defendant contends, the addition of the [606]

People v. Bush

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