People v. Cline

Foote. C. C. — The defendant was tried and convicted of grand larceny. From the judgment rendered in the premises, an order overruling his motion in arrest of judgment, and an order refusing him a new trial, he appeals. The order denying the motion in arrest of judgment is not appealable. (People v. Majors, 65 Cal. 100; 52 Am. Rep. 295.)

[376]It is claimed that the record does not disclose the fact that the defendant personally pleaded not guilty to the information filed against him; that for this reason it does not appear that the court below had jurisdiction to try him.

The record shows that the defendant was arraigned, and asked for further time in which to plead. A demurrer was then filed by his counsel, and overruled by the court; “ whereupon W. I). Grady, of counsel for defendant, in open court, pleads not guilty of the offense charged in the information, for and on behalf of the defendant, J. G. Cline.”

There is nothing, therefore, in the record which goes to show that the defendant was not present when (after due arraignment theretofore had) his counsel entered the plea of not guilty.

In People v. Huff, 72 Cal. 118, it was contended that the judgment should be reversed, because at “a view” had by the jury of the premises where the crime was committed, it did not affirmatively appear that the “sworn officer” in charge of the jury was the sheriff, “or that the place where the offense was charged to have been committed was shown to the jury by a person appointed by the court for that purpose, or that the defendant’s counsel and the judge of the court were present.”

But the appellate court, in refuting the argument made in that behalf, said: “ The settled rule is, that error is not to be presumed, but must affirmatively appear in the record, and all omissions and uncertainties in a bill of exceptions are to be construed against the party presenting it.....It will be presumed, therefore, in the absence of a showing to the contrary, that the sworn officer who accompanied the jury was the sheriff or his deputj'; that the place which the jury was sent out to view was properly shown to them by a person appointed for that purpose, and that, if need be, the counsel and the judge were present.”

[377]