People v. Noland

KNIGHT, J. Appellant was accused by information of having in his possession unlawfully a preparation of morphine in violation of the provisions of section 7 of the state Narcotic Act. (Stats. 1929, p. 380, as amended.) The information further charged that before the commission of said offense and on the 24th day of June, 1922, appellant was “received at San Quentin Penitentiary, having been convicted in the Superior Court ... of the crime of felony, to wit: Violating the State Poison Law ...” He pleaded not guilty to the charge of unlawful possession, admitted the prior conviction, waived a jury trial, and upon trial before the court was found guilty. He was sentenced to imprisonment in the state prison; and from said judgment of conviction he has taken this appeal.

As first ground for reversal appellant contends that the information does not conform to the requirements of subdivision 5 of section 959 of the Penal Code, in that it does not allege that the offense charged was committed prior to the filing of the information. There is no merit in the point. The provisions of the code section relied upon read: “The . . . information ... is sufficient if it can be understood therefrom: ... 5. That the offense was committed at some time prior to the time of the . . . filing of the information.” (Italics ours.) Here it was alleged in the information that the offense was committed on or about April 25, 1938; the information bears date June 7, 1938, and it was presented and filed in the superior court on June 16, 1938. The plain understanding to be had therefrom is, therefore, that the offense charged was committed at some time prior to the date of the filing of the information.

Appellant’s next point is that his waiver of a jury trial was not consented to by his counsel. (See. 7, art. I, Const, of Cal.) The point is not well taken. At the opening of the trial a panel of jurors was present, but counsel then representing appellant stated to the court that appellant desired to waive a jury trial. The district attorney insisted, however, that appellant himself should so state; whereupon [389]for the purposes of the record appellant’s counsel asked appellant whether he did waive a jury trial, and he answered in the affirmative. The district attorney then consented to the waiver; the panel of jurors was excused; the trial proceeded before the court; and the same counsel continued to represent appellant throughout the trial. It is quite evident that the proceedings thus had were legally sufficient to meet the requirements of the constitutional provision above cited.