People v. Tokich

VALLÉE, J.

Defendant was charged with the unlawful possession of a preparation of heroin in violation of section 11500 of the Health and Safety Code. He waived a trial by jury and was tried by Judge Walter R. Evans. On stipulation the cause was submitted to Judge Evans on the transcript of the preliminary examination, each side reserving the right to introduce additional evidence. No additional evidence was introduced. On September 23, 1953, Judge Evans, sitting in Department 41 of the Superior Court of Los Angeles County, having read the transcript of the preliminary examination, found defendant guilty as charged. Defendant then filed an application for probation. The pronouncing of judgment and the hearing of the application for probation were regularly fixed for October 21, 1953, in the the same department.

On October 21, 1953, Judge Mildred L. Lillie was sitting in Department 41. When the cause was called defendant’s counsel made a motion for a new trial, addressed to Judge Lillie, and submitted it without argument. The following proceedings were then had: “The Court: . . . Having set this date for hearing on the probation officer’s report and for

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pronouncement of judgment and sentence, is there any legal cause why judgment should not now be pronounced? Me. Bernay [attorney for defendant] : No legal cause, except for the fact at this time it is the desire of the defendant to make a motion for a new trial based upon all the statutory grounds. It is submitted without argument. The Court : I don’t believe I heard the case, Mr. Bernay, so I can’t pass on the motion for a new trial. Mr. Bernay : My memory doesn’t serve me at this moment. Whether it does on the jacket-The Court: Judge Evans. Mr. Bernay: It was submitted before Judge Evans. I feel that in the interest of my client I must make a motion. You appreciate the reasons. The Court : I think you may be right. I heard this on September 8th. Mr. Bernay : I think your Honor did. The Court : I have no independent recollection of the ease, Mr. Bernay. Mr. Bernay : Would your Honor continue the motion and sentence until perhaps 10:30 or 11:00 o ’clock this morning ? The Court : I will continue it until 11:00 o ’clock this morning to give me the opportunity of reading the transcript. Mr. Bernay: Your Honor appreciates the reason for the motion, to protect the defendant’s rights here. The Court : This short continuance is granted only for the purpose of permitting the Court to look over the transcript. It will be continued until 11:00 o’clock.” At “11:00 o’clock” Judge Lillie denied the motion for a new trial and pronounced judgment sentencing defendant to state prison. Defendant appeals from the judgment and sentence and from the order denying his motion for a new trial.