Buckley

The record presented to us in this case contains no evidence whatever indicating defendant’s guilt. And whenever a defendant appeals to this court upon the ground that the evidence is insufficient to support the verdict, we must assume that all material evidence introduced before the jury is in the record.

Section 1944 of the Code of Civil Procedure provides: “Evidence respecting the handwriting may also be given by a comparison made by the witness, or the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered of proved to be genuine to the satisfaction of the judge.” In line with the principle declared in this section the people introduced the genuine handwriting of the defendant before the jury, for the purpose of comparison with the handwriting in which the altered returns were made. We have not before us either a fac-simile of the genuine handwriting of the defendant, or of the altered returns. Neither have we the original writings which might well have been brought here for inspection under the rules of court. This evidence not being before us in any form, it must be assumed that it failed to establish defendant’s guilt, and for…

In this case the Department having failed to agree upon a judgment, a .reargument was had in Bank. The defendant was a member of the board of election in the tenth precinct of the thirty-fifth assembly district, in the city and county of San Francisco, at the general election of 1894. The information charges that at such election the defendant and one L. M. Martinet altered the official returns, and returned and caused to be received as true and official returns certain false and fraudulent tally lists, etc.

As presented here the transcript contains no evidence tending to show guilt in the defendant. It would appear that the only inculpating evidence before the jury consisted of the comparison by the jury itself of certain handwriting, proven to be that of the defendant, with the altered portions of the tally lists. The tally lists are not in the record in auy form, and neither the original nor any fac-simile of either paper is presented here. The point is made that the evidence does not sustain the verdict. Of course, since the only evidence consisted in the comparison of handwriting by the jury, the record here does not show whether there was any probative force in the…

I concur in the judgment of reversal, and in that part of the opinion of Mr. Justice Temple which holds that there is no evidence in the record sufficient to warrant the verdict. I do not concur in that part of said opinion which holds that in this case the prosecution should be dismissed because the defendant was not tried within sixty days after the filing of the information.

I concur in the judgment of reversal upon the ground, as set forth by Mr. Justice Temple in his opinion, that the evidence, as shown by the record, was insufficient to justify tiie verdict. I am of the opinion, however, that the court did not err in refusing to dismiss the cause. The information was filed December 27,1894, and the defendant was arraigned January 4th, and having taken time to plead, on the *154 11th of January demurred to the information. Argument was had upon this demurrer January 18th, and on the 25th of January the court overruled the demurrer, and the defendant entered a plea of not guilty. This was the first point of time after the filing of the information at which the defendant could be brought to trial, and his trial was had on the 18th of March. Whatever time was consumed by him in dilatory motions or pleas, which had the effect to postpone the time at which he could be brought to trial was “good cause to the contrary,” upon his application for the dismissal of the cause, under section 1382 of the Penal Code.