People v. Hellum

STONE, J.

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Appellant and a eodefendant were charged with burglary. At their preliminary hearing defense counsel objected to the introduction of most of the pertinent evidence, urging the exclusionary rule of the

Calían

ease, the hearsay evidence rule, and the unreliability of an informer. Had the objections been sustained and the evidence excluded, there would have been insufficient evidence to hold appellant and his codefendant to answer.

The questions presented by the objections were novel in some respects, which prompted the magistrate to request points and authorities from the district attorney and defense counsel. Seven days were allowed for the filing of points and authorities, and the court assured counsel of a ruling shortly thereafter. The question arose whether the presence of counsel would be necessary at the time of the ruling. Presumably an order holding defendants to answer was to follow if the objections were overruled. Counsel for each defendant advised the court that he wanted to be present if the ruling were to

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be adverse to his client. With this understanding, the hearing was continued seven days.

It appears from the record that after the initial seven days elapsed, the court, without notifying counsel, continued the matter an additional week. When the matter was called, appellant Helium, who was in custody, was brought to court. The absence of defendant Jones, who was on bail, was noted by the magistrate, who announced that it was understandable in that Jones had not been notified of the hearing. It is .significant that no mention was made of the absence of both defense counsel. Nor was appellant asked whether he wished to proceed in the absence of his attorney.

The district attorney’s office was represented at this hearing by a deputy who had not attended the previous hearing when the evidence was adduced. The presiding magistrate proceeded to brief the new deputy on what had occurred at the prior hearing. The briefing developed into a colloquy during which the district attorney was permitted to argue not only the points of law at issue, but also evidence which he had not heard. Finally, the court overruled the defense objections and motions to strike, and upon motion of the district attorney ordered both defendants held to answer.