47 Cal. 106, 10,052, People v. Weaver

Docket Nº10,052
Citation47 Cal. 106
Opinion JudgeRHODES, Judge
AttorneyI. S. Brown, for Appellant, Attorney-General Love, for the Respondents.
Judge PanelJUDGES: Rhodes, J.
Case DateOctober 01, 1873
CourtUnited States State Supreme Court (California)

Page 106

47 Cal. 106




No. 10,052

Supreme Court of California

October, 1873

Appeal from the District Court of the Second Judicial District, Tehama County.

The offense of which the defendant was indicted was charged as follows: " The said Isaac Weaver, on the fourteenth day of March, 1873, and before the finding of this indictment, at the county of Tehama, State of California, feloniously, willfully, and of his malice aforethought, in and upon one Adoph Walmer did make an assault, and the said Isaac Weaver feloniously, willfully and of his own malice aforethought, then and there did kill and murder the said Adolph Walmer." The affidavit of John Weaver, which is referred to in the opinion, stated, as a ground for a continuance, that a certain absent witness had been served with a subpena, but the Sheriff had informed the affiant " that in all probability the witness would not be present at the trial." The defendant was convicted, and he appealed from the judgment.


I. S. Brown, for Appellant, cited in support of the point that the indictment charged two offenses, Penal Code, secs. 240, 954, 952 and 1004.

Attorney-General Love, for the Respondents.

JUDGES: Rhodes, J.



Page 107

The defendant demurred to the indictment on four grounds: First, that the means used in the commission of the offense are not stated; second, that it is not charged that the homicide was committed contrary to the provisions of the " Penal Code; " third, that it is not stated that the names indorsed upon the indictment are all the witnesses who were examined by the grand jury; and, fourth, that the indictment was not transferred from the County Court to the District Court.

Had this indictment been found while the Criminal Practice Act was in force, it would have been held sufficient, so far as it respects the allegations of the means by which the murder was committed. (People v. Cronin , 34 Cal. 191.) Neither the sections of the Penal Code referred to by the defendant, nor any other section which we have examined,

Page 108

have changed the rules of pleading so as to require a more specific allegation of the means employed in the commission of an offense, than was necessary under the former statute.

The remaining grounds of demurrer are not relied upon here, and we are of the opinion that they are not well taken.

It is urged that the indictment is objectionable because...

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