People v. Hobson

Citations

• 17 Cal. 424

Syllabus

<p>Where the Justices composing the Court of Sessions, on motion for new trial— defendant having been convicted of assault with intent to murder—were not the same Justices composing the Court during the trial—one member being different—and this fact appears only by the minutes of the Court, reciting the names of the members thereof, and defendant does not object, on the motion, to the Justice who had not previously taken part in the proceedings: Held, that the objection is waived; that it does not go to the power of the new Justice to act, but merely to the propriety of his acting; and that, though it is better for jhe members of the Court who heard the trial to sit on the motion for new trial, still it is not a statutory right of defendant.</p> <p>Held, further, that the rule laid down in People v. Connor, (infra) that the same presumptions of regularity attach to proceedings in Courts of Sessions as in District Courts, covers this case; and that the presumption is that a sufficient reason existed for the change in the bench.</p> <p>If from resignation, or other such cause, one of the Justices of the Court of Sessions, after a trial, should not be able to sit on the motion for new trial, this would not prevent the motion from being passed upon by another Justice acting in the place of the one thus incapacitated.</p> <p>Cases might arise where this point alone, or in connection with other matters, would entitle a party to a new trial, or to a hearing of his motion before the Justices presiding at the trial; but in the absence of a showing of some special cause, this single circumstance is not ground of reversal.</p> <p>Although the Supreme Court will reverse a judgment in a criminal case where the Court below refuses an instruction asked by defendant, on the ground that the instruction has already in substance been given, without informing the jury that the refusal is for this cause, yet the rule is subject to the qualification that the language of the instruction a