People v. Lopez

26 Cal. 112

• Court: California Supreme Court
• Decided: July 15, 1864
• Status: Published

Opinion

By the Court, Sanderson, C. J.

The refusal' of the Court to "strike out the testimony of William and Ellen Slater was not error. The two hundred and thirty-second section of the Criminal Practice Act, (Wood’s Digest, p. 288) requires the names of the witnesses who are examined before the Grand Jury to be inserted at the foot of the indictment, or indorsed thereon, before it is presented to the Court; but the only consequence of a noncompliance therewith is prescribed in the two hundred and seventy-eighth section of the same Act, which provides that the indictment may be set aside by the Court where the names of the witnesses who were examined before the Grand Jury are not inserted at the foot of the indictment, or indorsed thereon. This has to be done on motion at the time defendant answers to the arraignment, as provided in section two hundred and seventy-seven. That such shall be the only consequence of a failure to insert the names of the witnesses at the foot of the indictment, or indorse them thereon, is expressly declared in the two hundred and eightieth section, which provides that if the motion to set aside the indictment be not made, the defendant shall be precluded from afterwards taking the objection. In the present case no motion to set aside the indictment was made. (People v. Freeland, 6 Cal. 96.)

The objection to a part of the instructions, upon the ground that the hypothesis upon which the instruction proceeds is not warranted by the evidence, is not well taken; but if it was, we are unable to perceive how the defendant was prejudiced by the instruction, or how the jury could have been thereby misled.

Judgment affirmed.