People v. Mellon , 40 Cal. 648 ( 1871 )

Rhodes, C. J.,

delivered the opinion of the Court, Teh-ple, J., "Wallace, J., and Crockett, J., concurring:

The Court did not err in overruling the motion for a continuance, for the affidavit did not show that the facts which the defendant expected to prove by the absent witness, were material. It seems to have been drawn on the assumption that it had already been shown that the larceny was committed in Sacramento County, and at the time mentioned in the affidavit. The indictment charged the defendant with the commission of the larceny in Tuba County, and when the motion was made no evidence had been introduced.

The venue in the indictment is laid in Tuba County. The defendant objected to the admission of evidence to prove that the property was stolen in Sacramento County, on the ground that the indictment alleged that the larceny was committed in Tuba County. It is provided by the Criminal Prac. Act (Sec. 92), that when property feloniously taken in one county by larceny, etc., has been brought into another, the jurisdiction of the offence shall be in either county. Tbe statute does not prescribe tbe form of tbe indictment in sucb case, but tbe offence is considered as committed in eacb county into wbicb tbe tbief carries tbe property, and eacb removal of tbe property, is regarded as a new caption and asportation. It is accordingly beld, tbat it is proper to charge tbe tbief with tbe commission of tbe offence in tbe county into which be took tbe property. Some of tbe cases bold tbat it is not improper to charge him, also, in tbe same indictment, with tbe commission of tbe larceny in tbe county where tbe property was first stolen; but none of tbe cases brought to our notice beld tbat it is necessary. (See 2 Arch. Crim. Pr. 355, and Notes; 2 Bisb. Crim. Proceed., Sec. 687, and Notes.) In Haskins v. People, (16 N. Y.) Denio, Cb. J., said: “It is unnecessary, and I think it would have been erroneous, to have set out in tbe indictment tbe offense in Cayuga County. Tbe Courts of Onondaga County bad no jurisdiction of tbat transaction as a distinct offence. It was simply a matter of evidence, to characterize what was done in Onondaga, and to show tbe quality of tbe act.” Tbe venue was properly laid in Yuba County. It was unnecessary to state in tbe indictment tbe facts showing tbe commission of tbe larceny in Sacramento County. We are also of tbe opinion tbat it was proper for tbe prosecution to prove tbat tbe property was stolen in Sacramento County, before it was taken into Yuba County.

Tbe defendant takes tbe objection, tbat tbe County Judge of Sutter County bad no authority to preside at the trial of tbe cause, in tbe place of tbe County Judge of Yuba County. Tbe objection is based on the language of Section 7, of Article YI, of tbe Constitution, tbat “there shall be in eacb of tbe organized counties of tbe State a County Court, for eacb of wbicb a County Judge shall be elected by tbe qualified electors of tbe county,” etc; and on tbe further ground tbat if County Judges, in tbe exercise of their judicial functions, are not limited by tbe Constitution to their respective counties, but tbat they may be empowered to “bold terms, or portion of terms” in other counties, as provided by Act of March 13, 1868 (Stats. 1867-8, p. 145), the County Judge, in this case, was not designated in the manner provided by that Act.

As regards the restriction of the power of a County Judge to act in the place of the Judge of another county, the words of Section 7, of Article YI, of the Constitution, have the same import as the words of Section 5, relating to the District Judges. It is therein provided that “in each of which [districts] there shall be a District Court, and for each of which, a District Judge shall be elected by the qualified electors of the district.’' Although the District Judges are required to be elected for their respective districts, it will not be questioned, that a District Judge may be authorized by law to hold a Court in any Judicial District of the State. It is equally clear, that a statute authorizing a County Judge to hold Court for the County Judge of another county, is not repugnant to the provisions of the Constitution.

To the point, that the County Judge of Sutter County was not duly designated, according to the provisions of the Act, to hold the Court for the County Judge of Yuba County, there are several answers. He was requested by the County Judge of Yuba County to hold the Court for the trial of this action. The record does not show for what cause he was thus requested to hold the Court, but it will be presumed that one of the causes mentioned in the statute existed; and as the record shows no objections by either party during the trial to his exercising jurisdiction in the cause, it will be presumed that they consented that he should be requested by the County Judge of Yuba County to hold the Court. These presumptions, in the absence of evidence showing that the facts were otherwise, will be indulged in support of the regularity of the proceedings in the cause. The request of the County Judge of Yuba County that he (the County Judge of Sutter County), should hold the Court for the trial of the cause, give him color of authority in that behalf, and he having held the Court for that purpose, his authority cannot be inquired into collaterally. (See People v. Sassovich, 29 Cal. 485, and cases there cited.)

Should it be conceded that he acted in the case without authority, then there would' be no exceptions in the record which would be entitled to notice; for he would be equally destitute of authority to settle and authenticate the bill of exceptions.

Judgment affirmed.