People v. Hrjak

On February 10, 1927, a complaint was filed with the justice of the peace of Temescal township, in the county of Riverside, charging the appellant with having committed “the crime of misdemeanor, to wit, the unlawful manufacture of intoxicating liquor,” in the city of Corona, Riverside County, on or about February 9, 1927. The jus

We think to state the ground here urged for reversal is to furnish the obvious answer to it. To argue that one justice of the peace deemed the evidence insufficient to

" The fact that the defendant had been previously arrested on the same charge, examined before a magistrate, and discharged, is not a bar to a second arrest and examination.

“A person cannot be said to have been once in jeopardy until he is put upon trial before a court of competent jurisdiction, upon an indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance.” (Italics as quoted.)

Appellant refers to section 1387 of the Penal Code, and upon it bases a claim that because the justice of the peace of Temeseal township made the order above quoted, no further prosecution for the same offense can be maintained. This section has no application to the instant case. It reads: “An order for the dismissal of an action, as provided in this chapter, is a bar to any other prosecution for the same offense, if it is a misdemeanor, ’ ’ etc. The language is too plain to be mistaken. It limits the application of the section to those orders for dismissal provided in chapter VIII of the title X of the Penal Code. Such orders are those enumerated in section 1382 of that code, and both subdivisions 1 and 2 thereof refer to cases where a person has been held for a public offense. In subdivision 1 it is provided that an action must be dismissed if an indictment is not found or information filed within thirty days after the defendant has been held to answer; and in subdivision 2 it is provided that where a defendant is not brought to trial within sixty days after the finding of an indictment or filing of an information, and a trial has not been postponed upon his own application, the prosecution must be dismissed. These are the only orders for dismissal to which section 1387 applies.

. Concerning appellant’s complaint that his bail was forfeited improperly, it is sufficient to say that inasmuch as he has made no attempt to point out any way in which error in that behalf, if committed, could have affected his

It appears that appellant owned a large still for the manufacture of whisky, which he and one Hoffman operated on the second floor of the premises where Hrjak was arrested; that Hoffman was not present at the time of the search and arrest of appellant, but that appellant was apprehended as he came down the stairs; he admitted to the officers that it was his home, but when asked as to his true name he gave a fictitious one. Hoffman’s wife testified as to the ownership of the still, and admitted that at times she may have watched it for the two men; that she assisted in bottling the product. A large quantity of the whisky was also found on the same floor, together with mash, sugar, etc.. It is argued that if it be held that the evidence is sufficient to sustain the verdict and judgment, Mrs. Hoffman was shown to have been an accomplice, and that a conviction based upon her uncorroborated evidence would have to be reversed. This point requires but brief attention, since the rule contended for is not applicable to this case. The corpus delicti was abundantly established, and the jury may well have been warranted from the facts and circumstances before them, even in the absence of Mrs. Hoffman’s testimony, in finding the defendant guilty. Identification of a defendant as the criminal need not be positively proved, and the weight and sufficiency of the evidence is entirely within the province of the jury, where, as here, there are substantial facts and circumstances tending to connect him with the offense. (People v. Rolfe, 61 Cal. 540 ; People v. Franklin, 46 Cal App. 1 [ 188 Pac. 607 ].)

The only other contention worthy of discussion is the asserted error of the trial court in declining to instruct the jury as to the law governing the issuance of search-warrants,

Other alleged errors are assigned for reversal, but they consist of rulings of the court and the giving or refusing to give instructions, based upon erroneous theories which have already been disposed of.

The judgment and order denying motion for new trial are affirmed.

Works, P. J., and Thompson, J., concurred.