People v. Pyler

HOUSER, J.

The appeal herein is prosecuted by defendant personally from a judgment of conviction of the crime of assault by means and force likely to produce great bodily harm. Many different points for reversal of the judgment are advanced by appellant; but no authorities are cited in support of any or either of his several contentions. Grave charges against nearly every one who in anywise was connected with the trial in the lower court, together with intemperate, disrespectful language, are freely interspersed throughout appellant’s brief. Were it not for the consideration which this court is constrained to give to a defendant who, on appeal from a judgment of conviction of the commission of a criminal offense, is without legal counsel, resort to steps which might involve unpleasant consequences to the author of such a “brief” would clearly be indicated. In the circumstances here present the lack of regularity in arrangement and conformity with established rules in the presentation of a brief will be overlooked and due consideration will be given to the substance of the appeal.

In effect, appellant’s first specification of error is that the verdict of the jury was contrary to and without support of the evidence. An examination of the record on

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appeal discloses the fact that each of several witnesses clearly and positively testified to facts from which the jury was fully justified in reaching the verdict of which complaint is made. That in their testimony other witnesses may have differed from the testimony of the witnesses introduced by the prosecution affords no legal reason to an appellate court for a reversal of the judgment.

It is next urged by appellant that the trial court erred in refusing to permit defendant to dismiss his attorney in the course of the trial. The transcript on appeal fails to show that any such request was made by defendant until after the verdict had been returned by the jury—at which time the request was granted. However, by affidavit, each of two persons deposed to the legal conclusion, only, that on the day on which the trial occurred she “did hear and see Tom Pyler try to dismiss his attorney and the judge would not give him a hearing.” No counter-affidavit respecting such alleged incident was filed. But when it is considered that the record is presumed to speak the truth, and that on an occasion subsequent to the rendition of the verdict, when the question of the correctness of the reporter’s transcript of the proceedings in that connection was raised, the judge of the trial court stated that at the time in question defendant made no audible request that his attorney be dismissed, it must be concluded that if such request was ever made by defendant it was done in such a low voice that neither the judge nor the stenographic reporter heard it. Moreover, even if it be assumed that defendant ineffectually endeavored to dismiss his attorney during the course of the trial, his only complaint with reference to the matter is that because he was not permitted thereafter to conduct his own defense he was prevented from introducing testimony which would have been given in his behalf by certain witnesses. The record contains no affidavit, even by the defendant, as to what testimony would have been given by any or all of such witnesses had they or any of them testified on the trial of the action. With reference thereto, the most that may be gathered from scattered statements contained in defendant’s brief relates to immaterial matters, which, on objection thereto, properly would not have been admitted in evidence. On appeal from a judgment, in order that alleged error committed on the trial of an action may be made available to