People v. Osmon

FORD, J.

The appellant was accused of the crime of burglary. In a trial by the court without a jury, he was found guilty of burglary of the first degree. He appeals from the judgment and from the order denying his motion for a new trial.

The only contention made on this appeal is that the trial court abused its discretion in denying the appellant’s motion for permission to withdraw his waiver of trial by jury. The essential facts will be stated.

When the case came on for trial on November 18, 1960, the appellant was represented by a deputy public defender. The appellant’s right to a jury trial was waived in the manner provided by law. It was stipulated that the court could determine the case upon the testimony given at the preliminary examination and upon the written reports of the doctors who had examined the appellant, except that the right was reserved to both sides to introduce additional evidence. The matter was then continued to December 12. All witnesses were excused from further attendance after the deputy public defender had said that the appellant would not “require any witnesses.” However, on December 5, 1960, the deputy public defender made a motion that Mr. Willis be substituted as the appellant’s attorney in the place of the public defender; that motion was granted. Thereupon Mr. Willis made a motion that the appellant be permitted to withdraw Hiss waiver of trial by jury and to be relieved of the stipulation heretofore set forth. Mr. Willis stated that he desired to cross-examine the witnesses for the prosecution upon the subject of the appellant’s intoxication.

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The matter was continued to the following morning and on that day, December 6, the motion presented by Mr. Willis was denied.

[153]

On December 12, the date to which the trial had been continued, the appellant sought a further continuance because of the absence of a physician whom he wished to call as a witness. With the consent of the district attorney, the matter was continued to December 22. After the continuance had been granted, the appellant renewed his request that he be permitted to withdraw his waiver of trial by jury. The deputy district attorney stated that pursuant to the prior stipulation and the agreement of the deputy public defender an exhibit had been returned “to the victim,’’ which exhibit “contained his wallet and longshoremen’s papers without which he could not work.” The court finally stated: “I am not making any definite decision on it now but I will say to both sides that they had better be prepared for any eventuality.”