No. 2,077.

#### THE PEOPLE OF THE STATE OF CALIFORNIA, Respondents, *v*. M. J. MELLON, Appellant.

Peactice. — Continuance.—To entitle a party to a continuance on the ground of the absence of evidence, the affidavit must show the materiality of the facts which he expects to prove by the absent witness.

Obihinal Peactice., — Laeceny.—Venue.—In a prosecution for larceny, the venue may be laid in any county into which the stolen property may be conveyed.

Idem.— Pleading. — When the venue has been laid in the county to which the stolen property has been brought, it is not necessary to state in the indictment, facts showiug tbe commission of the larceny in another county.

*Idem.*— Evidence.—In such case, it is competent to the prosecution to prove that the property was stolen in another county, before it was brought into that in which the venue is laid.

County Judge. — Constitutional Consteuction. — A statute authorizing a County Judge to hold Court for the County Judge-of another county, is not repugnant to the Constitution.

Idem. — Holding Couet in anothee County. — When the County Judge of one county, at the request of the County Judge of another, holds the Court of the latter, for the trial of an action, and the record does not show for what cause the request was made, the existence of some one of the causes mentioned in the statute, will be presumed.

Idem. — Jubisdiction.—"Where the record shows no objection, by either party during the trial, to the exercise of jurisdiction in the cause, by the Judge of another county, it will be presumed that the parties consented to the request by the proper Judge of the county, that he should hold the Court.

Idem. — A request by the County Judge of one county, to the County Judge of another, that he should hold the Court of the former, for the trial of a cause, gives the latter color of authority in that behalf, and he having held the Court for that purpose, his authority cannot be enquired into collaterally.

Appeal from tbe County Court of tbe County of Tuba.

Tbe defendant was indicted by tbe grand jury of Tuba County, for tbe crime of grand larceny, for feloniously^teal-ing, taking and driving away a large number of cattle.

On tbe case coming up for trial, tbe defendant moved for a continuance, on tbe ground of tbe absence of a witness, wliicb motion was over-ruled by tbe Court.

Tbe trial was commenced before tbe County Court of Tuba county, S. M. Bliss, County Judge, presiding; but *649during tbe trial, at tbe request of Judge Bliss, tbe Hon. R. W. Keyser, County Judge of Sutter County, took bis place on tbe bench and presided until tbe conclusion of tbe case. Tbe evidence showed that tbe cattle were stolen in tbe county of Sacramento, and were afterwards driven to tbe county of Yuba, where they were found in tbe possession of defendant.

Tbe jury brought in a verdict of guilty. Defendant moved for a new trial, which motion was denied by tbe Court, and judgment entered, sentencing tbe defendant to six years imprisonment in tbe State Prison, from which judgment and tbe order denying a new trial defendant appealed. '

Tbe other facts are stated in tbe opinion.

*Coffroth &*Spaulding, for Appellant,

*First*— Tbe Court erred in over-ruling tbe motion for a continuance.

„ Tbe affidavit for continuance was filed and contained all tbe necessary averments. Defendant was entitled to tbe attendance of tbe witness and examination before tbe jury; we cannot find that a trial was ever forced on upon such an affidavit. Tbe rule as to putting off a trial is tbe same in criminal as in civil codes. *(Bex*v. *D. Eou,*1 W. El. 514; 3 *Burns.*1514 S. C.;. 1 Ob. C. L. 490-491; 2 Tidd. 708; 2 Archb. 210; 8 East. 31.)

We admit that tbe Court below has a discretion in refusing or granting tbe motion, -but be has not an arbitrary discretion. Tbe decision must be based upon some rule of law; and in discovering and applying that rule. Is tbe witness material?

The affidavit shows that the absent witness will swear that tbe defendant was fifty miles distant from tbe scene of tbe larceny at tbe time it was committed, and that we cannot prove the same fact by any other person. We deduce from this that tbe witness was very material.

*Second*— Tbe County Judge of Sutter County, erred in *650trying tbe defendant, and. presiding at tbe trial, and in rendering judgment.

Tbe Constitution says: that there shall be elected *for*and *in*each County in tbe State, a County Judge.. (Const. Art. YI, Sec. 6.)

Tbe Legislature passed an act permitting County Judges to bold Court in counties other than tbe one for which they might be elected, but this can only be done under stated circumstances. (Stat. 1867-8, p. 145.)

To give Judge Keyser jurisdiction to try this case, some one of tbe facts stated in tbe statute should appear, but we search tbe record in vain to find one. All that can be found in tbe transcript is as follows, immediately succeeding tbe judgment: Phil. "W. Keyser, County Judge of Sutter County, acting for and at tbe request of tbe County Judge of Yuba County, California.

Tbe defendant was tried and convicted before a Judge who bad not jurisdiction to act, and as a consequence tbe judgment should be set aside, and a new trial ordered.

Judge Bliss bad not tbe legal authority to call him in; Tbe statute prescribes tbe mode, and it must be strictly followed.

*Third*— Tbe Court erred in permitting testimony to be given of tbe felonious asportation of property, in Sacramento County, when the' indictment averred it to be stolen in Yuba County.

"We admit that it is a leading principle in tbe law of larceny, that tbe possession of goods, stolen by tbe thief, is a larceny in every county into which be carries tbe goods; because tbe legal possession still remaining in tbe true owner, every moments continuance of tbe trespass and felony amounts, in lawful consideration, to a new caption and asportation. (10 Mass. (Band’s Ed.) 153; 7 Metcalf, 475; 21 Maine, 14-19; 17'Maine, 193; 2 Leigh, 708; Hittell’s Digest, Article 1680.)

But while we admit tbe above established facts, we assert that tbe facts constituting tbe larceny in tbe county where the crime was originally committed, and tbe further *651fact tbat tbe property was brought into tbe county where the indictment was found must be stated in the indictment. *Peoples. Campbell,*Oct. Term, 1870.)

In the case at bar defendant is charged with stealing certain property in Yuba County. As regards the charge the pleading is plain and direct. The proof shows that the larceny was committed in Sacramento County, and subsequently its fruits brought into Yuba County.

The allegata and probata must correspond. Here there are no averments in the indictment to meet the proofs.

Suppose defendant should be indicted in Sacramento County for this larceny? It will not be contended for a moment that the record of his conviction under the present indictment would be a bar to his conviction in Sacramento County-

The pleader should have stated all the facts constituting the charge.

All descriptive averments must be proved as laid. The pleader failed to set up the facts constituting the offence, and hence cannot prove anything more than what he averred in the indictment. (19 N. H. 135; 34 N. H. 529; 30 Miss. [1 George] 631; 1 Curtis, C. C. 362; 5 Missouri, 204.)

It is a general rule that the special matter of the whole fact should be set forth in the indictment with such certainty that the offence may judicially appear to the Court. (1 Wharton’s Or. L. Lech. 285, edition of 1863, and authorities cited; 3 Denio, 91; 8 Barbour, 547; 1 Humph. 167; *People*v. *Manby;*3 Selden (N. Y. Court of Appeals, p. 295); *People*v. *Dogherty,*7 Cal., 395-8; *People*v. *Miller,*12 Cal., 291.)

The latest case we can find in our own reo or is is that of the *People*v. *Garcia,*25 Cal. 531.)

*Jo Hamilton,*Attorney-General, for Respondent,

*Pirst*— The record discloses the fact that the offence and person of the defendant were both within the jurisdiction of the County Court of Yuba County. That the County Judge of Yuba County presided at the finding and return of *652the indictment, the arraignment and plea of the defendants, and the setting of the case for trial, on the 10th day of April, 1869; that the trial was then set for the 22d of April, 1869, at which time the record shows that George Keyser, County Judge of Sutter County, at the request of Judge Bliss, County Judge of Yuba County, commenced and continued to preside until the termination of the trial. That the defendant and his counsel from day to day were present in Court all the time, and assented to the action and presiding of Judge Keyser.

The defendant’s consent then appears, so far as his consent can appear. *(People*v. *Hobson,*17 Cal.; *People*v. *Henderson,*28 Cal.)

And he is not permitted to say that he did not consent. (Id.)

Judge Keyser presided at the request of Judge Bliss.

If he did not do so, it devolves upon the defendant to show, affirmatively, the fact as touching the jurisdiction of the County Court, in which he was convicted.

Appellant relies on *People*v. *Hodges*(27 Cal. 340). That case is not in point as the Court in which Hodges was tried and convicted never had any jurisdiction either of the person or of the offence. The question of jurisdiction in that case could be raised at any time. We say further that presumptions, which always follow, that public officers do their duty, and that Courts act within their vested powers, applies in this case, and that the rule laid down, in *Car-pentier*v. *Oalcland*(30 Cal. page 439), .applies, and that where we show that Judge Keyser presided with the consent of defendant and with the selection and designation of Judge Bliss, that this Court will not assume, that some one or more of the statutory reasons did not exist. It devolved upon the defendant to show affirmatively that fact.

*Second*— The continuance of the cause was a matter within the discretion of the Court below, and this Court would not interfere unless it should appear, that this discretion had been abused. *(Mosgrove*v. *Perlcins,*9 Cal. 211; *Pope*v. *Garnett,*23 Cal. 156.)

*653Tbe affidavit disclosed nothing which might not have been entirely consistent with defendant’s guilt. He mighthave been at home at the time averred, and still have committed the offence charged. The time charged in the indictment was on or about a certain date. Time is not a necessary ingredient.

*Third*— There is nothing in the transcript or proof showing that a larceny had been committed in Sacramento County. Sec. 871, Sec. 92 of Criminal Pr. Act, provides for just the present case; see, also, reasoning of this Court in *People*v. *Oronise,*(34 Cal. 191.) During the oral argument the defendant’s attorney raised the question of constitutional powers of the Legislature to pass the act of 1867-8. It will be observed while the Constitution provides for a County Judge for each county, and for the election of a qualified person for each county, the services of such Judge are not restricted by the Constitution.

Rhodes, C. J.,

delivered the opinion of the Court, Teh-ple, J., "Wallace, J., and Crockett, J., concurring:

The Court did not err in overruling the motion for a continuance, for the affidavit did not show that the facts which the defendant expected to prove by the absent witness, were material. It seems to have been drawn on the assumption that it had already been shown that the larceny was committed in Sacramento County, and at the time mentioned in the affidavit. The indictment charged the defendant with the commission of the larceny in Tuba County, and when the motion was made no evidence had been introduced.

The venue in the indictment is laid in Tuba County. The defendant objected to the admission of evidence to prove that the property was stolen in Sacramento County, on the ground that the indictment alleged that the larceny was committed in Tuba County. It is provided by the Criminal Prac. Act (Sec. 92), that when property feloniously taken in one county by larceny, etc., has been brought into another, the jurisdiction of the offence shall be in either *654county. Tbe statute does not prescribe tbe form of tbe indictment in sucb case, but tbe offence is considered as committed in eacb county into wbicb tbe tbief carries tbe property, and eacb removal of tbe property, is regarded as a new caption and asportation. It is accordingly beld, tbat it is proper to charge tbe tbief with tbe commission of tbe offence in tbe county into which be took tbe property. Some of tbe cases bold tbat it is not improper to charge him, also, in tbe same indictment, with tbe commission of tbe larceny in tbe county where tbe property was first stolen; but none of tbe cases brought to our notice beld tbat it is necessary. (See 2 Arch. Crim. Pr. 355, and Notes; 2 Bisb. Crim. Proceed., Sec. 687, and Notes.) In *Haskins v. People,*(16 N. Y.) Denio, Cb. J., said: “It is unnecessary, and I think it would have been erroneous, to have set out in tbe indictment tbe offense in Cayuga County. Tbe Courts of Onondaga County bad no jurisdiction of tbat transaction as a distinct offence. It was simply a matter of evidence, to characterize what was done in Onondaga, and to show tbe quality of tbe act.” Tbe venue was properly laid in Yuba County. It was unnecessary to state in tbe indictment tbe facts showing tbe commission of tbe larceny in Sacramento County. We are also of tbe opinion tbat it was proper for tbe prosecution to prove tbat tbe property was stolen in Sacramento County, before it was taken into Yuba County.

Tbe defendant takes tbe objection, tbat tbe County Judge of Sutter County bad no authority to preside at the trial of tbe cause, in tbe place of tbe County Judge of Yuba County. Tbe objection is based on the language of Section 7, of Article YI, of tbe Constitution, tbat “there shall be in eacb of tbe organized counties of tbe State a County Court, for eacb of wbicb a County Judge shall be elected by tbe qualified electors of tbe county,” etc; and on tbe further ground tbat if County Judges, in tbe exercise of their judicial functions, are not limited by tbe Constitution to their respective counties, but tbat they may be empowered to “bold terms, or portion of terms” in other coun*655ties, as provided by Act of March 13, 1868 (Stats. 1867-8, p. 145), the County Judge, in this case, was not designated in the manner provided by that Act.

As regards the restriction of the power of a County Judge to act in the place of the Judge of another county, the words of Section 7, of Article YI, of the Constitution, have the same import as the words of Section 5, relating to the District Judges. It is therein provided that “in each of which [districts] there shall be a District Court, and for each of which, a District Judge shall be elected by the qualified electors of the district.’' Although the District Judges are required to be elected for their respective districts, it will not be questioned, that a District Judge may be authorized by law to hold a Court in any Judicial District of the State. It is equally clear, that a statute authorizing a County Judge to hold Court for the County Judge of another county, is not repugnant to the provisions of the Constitution.

To the point, that the County Judge of Sutter County was not duly designated, according to the provisions of the Act, to hold the Court for the County Judge of Yuba County, there are several answers. He was requested by the County Judge of Yuba County to hold the Court for the trial of this action. The record does not show for what cause he was thus requested to hold the Court, but it will be presumed that one of the causes mentioned in the statute existed; and as the record shows no objections by either party during the trial to his exercising jurisdiction in the cause, it will be presumed that they consented that he should be requested by the County Judge of Yuba County to hold the Court. These presumptions, in the absence of evidence showing that the facts were otherwise, will be indulged in support of the regularity of the proceedings in the cause. The request of the County Judge of Yuba County that he (the County Judge of Sutter County), should hold the Court for the trial of the cause, give him color of authority in that behalf, and he having held the Court for that purpose, his authority cannot be inquired *656into collaterally. (See *People*v. *Sassovich,*29 Cal. 485, and cases there cited.)

Should it be conceded that he acted in the case without authority, then there would' be no exceptions in the record which would be entitled to notice; for he would be equally destitute of authority to settle and authenticate the bill of exceptions.

Judgment affirmed.