People v. Baker

• Decision Date: 01 April 1851
• Citation: 1 Cal. 403
• Parties: THE PEOPLE v. BAKER.
• Court: California Supreme Court

1 Cal. 403

THE PEOPLE v. BAKER.

Supreme Court of the State of California

April Term, 1851

April 1, 1851

APPEAL from the District Court of the County of San Joaquin. The material facts are stated in the opinion of the Court.

James A. McDougall (Attorney-General), for the People.

D. W. Perley, for the Prisoner.

By the Court, BENNETT, J. The defendant was convicted of the crime of murder at the April term of the District Court of the County of San Joaquin. An application was made to change the place of trial from that county to one of the adjoining counties, on the ground that the defendant could not have a fair and impartial trial in the County of San Joaquin. The application was supported by the affidavit of the defendant alone, who sets forth therein various reasons from which he is led to believe that a jury could not be selected from the citizens of Stockton, who would give him a fair and impartial trial. But Stockton does not constitute the whole of the County of San Joaquin, and it does not appear that an impartial jury could not have been selected from citizens of the county residing out of Stockton. The Court was not satisfied that the prisoner could not have a fair trial in that county, and the decision of the District Judge on this point was correct.

The defendant was indicted at the December term of the District Court, and was ready for trial at that term, but the cause was put over on the application of the District Attorney to the April term, when the defendant applied for a further continuance, the refusal of which, it is claimed, was error, for which the judgment should be reversed. But we think the affidavit of the defendant does not show a case, upon which the Court could be required to grant a continuance. It does not show due diligence on the part of the defendant in endeavoring to procure the attendance of his witnesses, or their depositions in case their personal attendance could not be compelled. It does not appear at what time the subpoenas for the witnesses were taken out, at what time the witness known by the name of "Bones" left the county, what efforts were made to procure a service of subpoena upon him, or that any attempt had been made to procure the testimony of Turner. The affidavit, it is true, states that Turner had promised to be in attendance, but the defendant should have taken some legal means to procure his evidence. Under these circumstances, the facts which were intended to be proved by these witnesses, should, at...