People v. Spinks

McMURRAY, J. pro tem.

*

This is an appeal after a judgment of conviction of violation of Penal Code, section 337a, by the court and its denial of the motion for new trial after appellant had waived trial by jury and submitted the matter on the transcript of the preliminary hearing, with each side reserving the right to introduce additional evidence.

The thrust of the appeal is that the trial judge prejudged the case. Appellant contends that such prejudging is shown by the following facts. After argument as to the admissibility of certain evidence, and a motion to suppress such evidence, the motion having been submitted, the court stated: “The motion is denied. I find the defendant guilty as charged. ’ ’ Appellant strenuously urges that the submission made by him was only effective as to the motion to suppress and that he had not rested.

Appellant states that it was useless to proceed since the judge had already found appellant guilty. This reveals a remarkable docility in counsel in a criminal case. It would appear that the formula words “the defendant rests” have no magic in and of themselves, and it is often customary for attorneys, particularly in matters where there is not a jury, to conclude their arguments by stating “the matter is submitted.”

[368]

If appellant’s counsel had, at the time of the judge’s statement, made known the position he here takes, the matter could easily have been rectified at that time. Both People and appellant had informed the court that there would be no testimony other than that contained in the transcript of the preliminary hearing. At the conclusion of his argument, appellant, through his counsel, stated: “I will submit it with that observation.”

Interpersonal communication is, at best, vague and subject to varying interpretation. Counsel for a defendant should be vigorously alert to make sure that his position is understood, as well as is possible by the use of language, by the trier of the fact.

If there is error here, appellant made no timely appropriate objection and must be deemed to have waived such error.

(People

v.