People v. Griner

GAROUTTE, J. Defendant has been convicted of murder of the second degree, and appeals from the judgment and order denying his motion for a new trial.

The information charging'the commission of the crime is signed with the name of the district attorney of the county, “by T. J. Butts, assistant district attorney.” It is now claimed that there is no authority in law for an assistant district attorney to sign an information in the name of his principal, and that, therefore, the motion to set aside the information should have been granted. The district attorney of Sonoma county is allowed an assistant district attorney by authority of the legislature. It has been held that an information is properly signed when the district attorney’s name is attached'thereto by a deputy district attorney. (People v. Darr, 61 Cal. 554; People v. Etting, 99 Cal. 577.) Again, it is held that an information signed by an assistant district attorney is valid. (People v. Turner, 85 Cal. 432.) If an information signed by a deputy district attorney in the name of his principal satisfies the law, and if an information signed by an assistant district attorney also satisfies the law, then there can be no question but that an information signed in the name of the district attorney by the assistant district attorney is sufficient.

It is next insisted that the verdict is contrary to the evidence. To this'point we quote the following excerpt from the testimony of the defendant himself: “I saw he won’t go to bed, and so I got up and lit the lamp and told him to go out to his room, and he would not do it, and I urged him along, and put the lamp on the table in the sitting-room, and urged him along to his room, and he got out of the sitting-room into the empty room, and there was an ax in the comer between the two doors, and I saw him raise that, and I went back to my bedroom and under the pillow I had my pistol and got it, and I walked out and urged him along to go to his bed, and he shook the ax around one [21]way and the other way, and I fired three shots, the first one hitting the breast, and the others I don’t know where they went. I went back to the sitting-room. The room was full of smoke, and I heard the ax drop and he walked out on the porch, and from there I don’t know where he went, and I took the lamp and went out and found him dead on the ground.” Upon this evidence alone the jury was authorized in law to find the verdict rendered.

It is claimed that a new trial should have been granted upon the ground of newly-discovered evidence.. In view of the fact that Brown, the party who was ready to give the newly-discovered evidence upon a second trial, was present as a witness at the first trial, subpoenaed by the defendant, we are not strongly impressed with the showing made. It can be only in an exceptional case that the character of showing here disclosed should be deemed sufficient to demand a new trial. Especially in a case presenting these facts much should be left to the discretion of the trial court. ¡New trials upon the ground now urged would be a most common occurrence if the precedent here sought should be declared. Harralson v. Barrett, 99 Cal. 610, is a case in point. It was there held that a lack of diligence in securing the evidence was fatal to the application. In this case there was no abuse of discretion upon the part of the trial court in so holding.