People v. Blackman

THE COURT.

Defendant was convicted of a felony. Upon the hearing of the motion of defendant for a new trial two affidavits were read in its support, made hy two different persons who were present at the trial. In substance they deposed that after the court had instructed the jury, and while the-district attorney was addressing the jury, the presiding judge left the bench and the courtroom and went into another room, closed the door behind him and was absent from the courtroom about ten minutes, during which time the district attorney proceeded witli his argument to the jury upon the facts of the case. Eo affidavit disputing these facts or explaining the absence of the judge was made by anyone. Defendant’s affidavits were filed with the notice of motion for a new trial, and when the motion came on to be heard and the affidavits were read the court made the following remark: “What! what! The court knows of its own knowledge that it was not absent any such time or in any such manner, and was not out of hearing of counsel while arguing said cause at any time, and that the door of my chamber was open at that time, and even when the door is shut I

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can hear all that is going on in the courtroom.” The attorney general cites

Southern etc. Co. v. National Bank,

100 Cal. 316, in which the court quotes from a, Nevada case “that in all motions before a judge, during the progress of the trial, he may act on his own knowledge in regard to things which in their nature are better known to himself than they could be to others.” The motion in both these cases was for transfer of the place of trial upon the ground that the judge was interested in the cause, and in the case in 100 California the affidavit was not to the fact that the judge was disqualified by reason of interest, giving the disqualifying facts, but it was that, as affiant was informed and believed, the judge had said he considered himself disqualified. It has been held here recently that a motion to transfer a cause, on the ground of the bias of the judge, must be decided on affidavits

(People v. Comp

ton,, 123 Cal. 403); so that the above rule does not apply in that kind of a case; nor do we think it would apply where the facts as shown clearly disqualify the judge as interested in the cause of action. The judge’s belief cannot overcome the legal conclusion to be drawn from the facts. The attorney general also claims that the statement of the judge from the bench must be received as a refutation of the facts set forth in the affidavits. We are not called upon to decide whether the state-. ment of the court is to be received as the equivalent of an affidavit in all cases, or whether the rule in the case of