People v. Stump

Opinion

DUNN, J.

Count VIII of an information filed January 10, 1968 charged appellant Stump, Patricia A. Bowers and Melvin N. Richards with possession on December 15, 1967 of heroin, a felony, in violation of Health and Safety Code section 11500. Each defendant moved to set aside count VIII

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of the information, pursuant to Penal Code section 995, and the motions were granted. Bowers was required to plead to other counts in the information and her case therefore was severed from that of appellant and Richards. The People appealed from the order of dismissal as to Richards and appellant; this court reversed

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and, on remand, Stump and Richards were rearraigned, pleading “not guilty.” Their jury trial began September 29, 1969, and concluded October 1st with verdicts of “guilty.” Both defendants appealed. Richards died while his appeal was pending so that Frederick C. Stump is now sole appellant. He makes two basic contentions.

1

Did the Trial Court Erroneously Deny Appellants Motion to Grant a Continuance and to Sever His Trial from that of Richards?

As already noted, the case was sent out for trial on September 29, 1969. Prosecution witnesses Holmes and Iavelli testified on September 30th, Iavelli’s testimony being completed on October 1st. The examination of the last prosecution witness, Kassel, was completed before 11 a.m. that morning and the People rested. No evidence was offered by either defendant and they, too, rested. After argument and instructions to the jury, the jury returned its verdicts on October 1st at 3:45 p.m.

When the court had convened at 9:30 a.m. the morning of October 1st, appellant Stump claimed to be in “extreme pain,” because of a liver condition, and moved to sever his trial from that of Richards and to continue it. The motions were denied, the court stating, “We expect to be through here by today. We will proceed as fast as we possibly can.”

Appellant’s claim of illness was unsupported by medical or other proof and rested solely upon representations appellant made to his attorney, repeated by the attorney to the trial judge. The attorney told the court that appellant had first informed him of his liver ailment four or five days before the trial began; he had called Dr. Crahan and “Dr. Crahan advised me at that, time that he would look into the matter, although he didn’t think the defendant was being deprived of any medical treatment that he was required to have.”