The record-union., 1891-03-06

nlent which related thereto: and this pre-
| sumption is not overcome by anything in
the record, which merely states that 1.-THE
information charging the defendant with
| the above c2iaRe mot crimes) was read,
and plea mot pleas of not guilty stated to
the jury" No objection was made at the
time; and it is quite clear that there is no
affirmative showing of error on this point.
3. The sentence-ten years-does not
exceed the maximum term OF imprison-
ment, for the record shows that the de-
tendant had suffered former convictions.
4. Assuming that the record must show
a recital Of the matters referred to in Sec
| ton 1900 of the Penal Code, and that the
section is not merely directory, still it
appears from the record in this case that
the directions of said section were quite
fully complied with.
| 8. 1t does not appear that the oral charge
OF the court was not taken down by the
| reporter; and where the contrary does
not appear it will be presumed that the
| law was obeyed
| 6. The jury having first returned a ver-
dict of 'guilty as charged, ;, the court in
formed them that it would be necessary to
find the degree of the crime, and that ifthe
attempt was made in the nighttime it
would be an attempt to commit burglary
IN the first degree; and, in that connec-
ton, the court told the jury that 1.-The
testimony was, it was or 4 o'clock in
eliO IL Is COIltCnQGu UDaD IQlS
language last quoted was erroneous. 1t
Is not necessary to determine whether
the use of this language was the mere ex-
erclse OF the constitutional power of a
Judge to 'state the testimony" or viola
ton of the mandate that Judges shall
| not charge juries with respect to matters
| OF fact"--(State Const-, Art. VI, Sec. 49,
| for the only evidence upon which defend
ant could have been convicted at all
| showed, without conflict, that the attempt
| was made in the nighttime. Defendant,
! therefore, could not have been prejudiced
by the remark of the court.
z. The graveSt point made by appellant
| is the one based upon the alleged failure
! to prove the UeRUe. Of course, there must
be sufficient proof Of the venue in every
criminal case and experienced prosecuting
attorneys are generally careful TO make
| such proof at an early stage of the trial.
In the case at bar the prosecution seem to
have entirely overlooked the necessity of
asking any questions on that subject.
But notwithstanding that oversight, there
was, we think, sufficient evidence to war
rant the jury in finding that the crime
charged was committed in the city and
county of San Francisco, there being no
evidence tending to show the contrary.
Ihe information was entitled in the SUI
perior Court of said city and county, and
| charged that the crime was committed
lat the said city and county of San Fran
cisco, State of California" at a certain
house on Grant avenue.'' The jurors
were citizens and residents of San Fran
cisco, and the courthouse in which they
sat while defendant was being tried was
near the center of the city. The principal
witness for the prosecution testified that
ON the night of the alleged crime
he was a police officer ION reg
ular forces" that ION said night
he was on duty ''on Grant avenue,
from Market to Bush," and that territory
was his regular beat;" and that when he
first saw defendant that night he was in
an alley called Stockton Place, soff Grant
avenue, between Post and Suffer-" And
1t was shown that the crime, if committed
at all, was committed on said Grant ave-
nue. at a certain house adjacent to said
Stockton Place. Thus half dozen
of the principal and best known
were named, between, or upon,
which the crime was committed; and al
though, from a failure to ask them, the
witnesses did not testify directly that
these streets were in the prominent city
of San Francisco in which the court was
sitting, still we think that the evidence,
taken in connection with the surround
ing circumstances, was sufficient to JUS
tify the jury in finding as Jurors, what
they we'll knew as men, that the streets
named by the witnesses meant the well
known streets so named IN San Fran
cisco.
In Brady VS.. Page $50 Cal. 52), and Whit
ing VS.. Quackenbush l54 Cal. 306), this
court seems to have held that judicial no
tice would be taken of the streets of. San
Francisco; although there may be some
points of distinction between those cases
ana the one at bar.