It is also settled that this court will not deal with the question of the preponderance of evidence." (People v. Ashnauer, 47 Cal. 98.) We are not unmindful that a ruling of a trial court cannot be set aside here merely because a wrong reason was given for it.
Section 809 of the Penal Code requires that the information shall be "subscribed by the district attorney," but does not require him to add to his signature the name of the county, or of the state. In People v. Ashnauer , 47 Cal. 98, the district attorney signed an indictment "Henry Starr, district attorney," without adding the name of the county, and it was held sufficient. The courts will take judicial notice that the county of San Diego is in the state of California. (Humboldt County v. Dinsmore , 75 Cal. 604.)
The judge has the witnesses before him, and, as suggested in People v. Lum Yit, supra, "an equal opportunity with the jury to observe the manner of the witnesses, the character of their testimony, and to judge of their credibility, and to discover their motives; he, too, ought to be satisfied that the evidence as a whole was sufficient to sustain the verdict; if he was not, it was not only the proper exercise of a legal discretion, but his duty to grant a new trial. (People v. Baker, supra;People v. Ashnauer , 47 Cal. 98; People v. Hotz , 73 Cal. 241.)"
Under such circumstances no surprise is felt that the court below failed to be convinced that the presence of the witness would be secured by a continuance. (People v. Ashnauer , 47 Cal. 98; People v. Francis , 38 Cal. 188; People v. Ah Yute , 53 Cal. 613.) The contention of appellant, that the deposition of Wodecki, taken at the preliminary examination of defendant, should have been admitted as absolutely true, cannot be maintained.
(1 Hayne on New Trial and Appeal, sec. 97; Dickey v. Davis , 39 Cal. 565; People v. Lum Yit , 83 Cal. 130, 133; People v. Hotz , 73 Cal. 241. See, also, People v. Ashnauer , 47 Cal. 98; Sherman v. Mitchell , 46 Cal. 576, 577; Bauder v. Tyrrel , 59 Cal. 99; White v. Merrill , 82 Cal. 14; Bjorman v. Fort Bragg R. Co ., 92 Cal. 500.) If any ground exists upon which a motion for a new trial ought to have been granted, the order granting a new trial will be sustained, without regard to the reasons given by the court below for granting it. (Nally v. McDonald , 77 Cal. 284; Harnett v. Central. P. R. R. Co ., 78 Cal. 31; White v. Merrill , 82 Cal. 14.) JUDGES: Temple, C. Belcher, C., and Haynes, C., concurred.
The Penal Code, section 1181 (6), authorizes the court to grant a new trial when the verdict is contrary to law or evidence; and, whenever the trial court is of the opinion that the evidence upon which the conviction was had was insufficient to justify the verdict, it is its duty to grant a new trial, and its action in this respect will not be reversed in this court, unless it shall be shown that t here was a manifest abuse of its discretion. [36 P. 664] (People v. Baker , 39 Cal. 686; People v. Ashnauer , 47 Cal. 98; People v. Hotz , 73 Cal. 241; People v. Lum Yit , 83 Cal. 130.) The appellant herein has not shown any violation of this rule, and an examination of the record does not enable us to say that the court was not justified in its action.
The motion for a continuance was properly denied, as there was no showing therein of due diligence. (Lezinsky v. White , 45 Cal. 278; People v. Ashnauer , 47 Cal. 98.) The absence of evidence is no cause for a continuance, unless reasonable diligence has been used to procure it. (Kuhland v. Sedgwick , 17 Cal. 128; Frank v. Brady , 8 Cal. 48; Pierson v. Holbrook , 2 Cal. 598.)
He had the witnesses before him, and an equal opportunity with the jury to observe the manner of the witnesses, the character of their testimony, and to judge of their credibility and discover their motives; he, too, had to be satisfied that the evidence, as a whole, was sufficient to sustain the verdict; if he was not, it was not only the proper exercise of a legal discretion, but his duty, to grant a new trial. (People v. Baker, supra;People v. Ashnauer , 47 Cal. 98; People v. Hotz , 73 Cal. 241.) The order should therefore be affirmed.
The surprise and diligence of the election board was immaterial. (Civ. Code, sec. 1121; People v. Baker , 1 Cal. 404; Kuhland v. Sedgwick , 17 Cal. 123; Lightner v. Menzel , 35 Cal. 452; People v. Ashnauer , 47 Cal. 98; Jacks v. Buell , 47 Cal. 162; Kern Valley Bank v. Chester , 55 Cal. 49.) If the proposed testimony was within the issues, it was the clear duty of Dunster to have had the voters of Boston Ravine precinct in attendance at the beginning of the trial to rebut plaintiff's charge of malconduct, or to have moved for a continuance before the trial. (Code Civ. Proc., sec. 1121.)
The motions for continuances were properly denied. (People v. Quincy , 8 Cal. 89; People v. Ashnauer , 47 Cal. 98; People v. Mortimer , 46 Cal. 114; People v. Thompson , 4 Cal. 239; People v. De Lacey , 28 Cal. 589; People v. Francis , 38 Cal. 187; Pen. Code, secs. 1052, 1349, 1354.) No constitutional right of the defendant was impaired by ordering him to stand up for purposes of identification.