People v. Laisne

PEEK, J.

By information defendant was charged with a violation of section 702 of the Welfare and Institutions Code in that he sold intoxicating liquor to a minor, thereby tending to cause the minor to lead an idle, dissolute, lewd and immoral life. The case was submitted on the record of the preliminary hearing supplemented by written argument of counsel. From the judgment of conviction which was thereafter entered, defendant appeals contending (1) that the evidence was insufficient to support the judgment, and (2) that the court erred in excluding certain testimony and exhibits.

The record shows that on the evening of December 24, 1956, James, the minor, attended a party at a friend’s home at which several persons between the ages of 16 and 20 were present. It was decided that some liquor should be obtained, and a collection was taken up for that purpose. James, with two other minors, drove to the Chateau Laisne, a bar and restaurant near Mariposa, which was owned and operated by the defendant. James purchased a fifth of vodka,

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two pints of bourbon and some beer. No request was made by the defendant for any identification, nor did James make any statement relative to his age. After the sale the boys returned to the party where the liquor was consumed. At the conclusion of the preliminary hearing, which was before Judge Thomas Coakley of the Superior Court of Mariposa County, it was stipulated that the ease would be submitted for decision upon the transcript of the evidence taken at the preliminary hearing and the written argument of counsel. Subsequently Judge Coakley disqualified himself, and the cause was submitted to Judge R. R. Sischo of Merced County.

It is defendant’s first contention that since the final decision in the ease was made by a judge who did not see or hear the witnesses but had only the written record before him, this court should therefore reweigh the evidence on appeal.

Here it should be noted that defendant was not compelled to submit the case for determination upon the evidence produced at the preliminary examination. Had he desired the judge to see the witnesses personally and hear the testimony he had every right to a court trial. To allow him now to attack the conclusion of the court on the very basis upon which he allowed it to be submitted would be to go far afield from the established rules of appellate practice. The rule so frequently quoted from