People v. Plyler

Criminal Law—Joint Preliminary Examination—Separate Information— Discretion.—The fact that complaint was laid before a magistrate-jointly charging defendant and others with an offense, and that the defendant and one of the others, as the result of a joint preliminary examination, were together held over for trial, does not preclude the filing of separate informations against them by the district attorney. It is within the discretion of the district attorney to inform against them either jointly (with the privilege to each of them of securing a separate trial), or separately, as he may determine.

Id.—Evidence—Competency of Another Accused Person—Privilege.— The district attorney has the right to call to the witness stand; another accused person, over whom was pending an information for the same offense, as being a competent witness, notwithstanding such person may avail himself of the privilege to decline to-answer questions put to him, on the ground that his answers would tend to criminate him; and the calling of such accused person as a-witness is not error, whatever may have been the resulting consequences in tending to prejudice defendant’s case before the jury.

Id.—Mayhem:—Name of Person Injured—Variance.—Where the complaint charged the offense of mayhem by castration, committed upon a person named, and the information followed the complaint as to the name of the person injured, and at the preliminary examination he swore that that was his true name, and upon the trial testified that he had been known by that name for six years, but that it was-not his true name, and that he had sworn falsely as to his name to shield his family from knowledge of the outrage of which he was the victim, there is no variance, but an identity in names and, person; and the fact disclosed upon the trial that his true name was different did not constitute a variance, nor could it have at all injured the defendant.

Id.—Instruction—Distrust of Ealse Witness—Construction of Code-Maxim—An instruction requested that: “If any witness examined before you has willfully sworn falsely as to any material matter, it is your duty to distrust his entire evidence,” is an accurate exposition of the meaning of subdivision 3 of section 2061 of the Code of Civil Procedure, and should have been given without modification. The important element that the willfully false testimony must be upon a material matter, should be expressed in the instruction, though not expressed in the code.

Id.—Continuance—Sickness of Material Witness—Abuse of Discretion. It is an abuse of discretion to refuse to grant a first continuance, upon motion of the defendant, based on his affidavit that his wife was under subpoena, and was a material witness by whom he could prove of her own knowledge that defendant did not commit or participate in the alleged offense, and that he had no knowledge of it until after it had been perpetrated, and that she was the only person by whom he could prove any of these facts; that she was taken ill two or three days before the trial, and' that he could not safely proceed in her absence, and that in a month she would be able to attend, accompanied by the certificate of two physicians in corroboration, and by the oath of defendant’s counsel that she would give the testimony outlined by the defendant.