People v. Lee

The defendant was convicted in the superior court of the county of Mono on an. information charging him with an assault with intent to commit murder, and from the judgment of conviction, as well as from the order denying his motion for a new trial, he appeals to this court. It will not be necessary for us to examine all the alleged errors imputed to the court below, particularly those in connection with seventy instructions in the case, as the judgment will have to be reversed upon the first point made on the appeal. When the case was called for trial in the court below defendant interposed a motion for a continuance, which was denied. The basis of the application was the nonappearance of two witnesses in behalf of the defense. These witnesses, named Hayes and Hill, were absent from the county of Mono, and were, respectively, in the counties of Mariposa and Calaveras. The defendant, in order to have them subpoenaed according to the statute in such cases provided, made the affidavit and procured the order named in section 1330 of the Penal Code, and in pursuance thereof the witnesses were duly and regularly subpoenaed in the counties where found. Notwithstanding this fact they…