People v. Schunke

HOUSER, J. From a judgment which was rendered against him pursuant to his conviction of each of the crimes of robbery and of burglary, as well as from an order by which his motion for a new trial was denied, defendant has appealed to this court.

No question is raised by appellant regarding the sufficiency of the evidence to sustain the judgment. But since his defense to the charges upon which he was tried consisted in an unsuccessful attempt on his part to estab[546]lish an “alibi”, in that at the time when the offenses were committed he was at a place remote from the scene of the crime, to wit: many miles therefrom and at the home of his sister and her husband, appellant complains of the ruling made by the trial court “of its own motion”, by which, in an offered explanation by defendant of the absence of his sister and her husband from the trial of the action, testimony that was given by the mother of appellant, in substance that the sister of appellant was sick and her husband was working, was stricken from the record as “incompetent, irrelevant and immaterial”, and thereby withdrawn from the consideration of the jury.

Particularly in view of the fact concerning the family relationship that existed between defendant and the absent witnesses, and the presumed availability of the testimony of the latter in behalf of defendant, not only the applicability of the statutory inference (subd. 5, sec. 1983, Code Civ. Proc.) that if produced the testimony that might have been given by such witnesses would have been adverse to the asserted defense of “alibi” became apparent, but as well the situation thus presented assumed greater magnitude and importance as it affected and related to such “defense”. The substance of the pertinent testimony given by the mother of defendant, and which testimony, by order of the trial court, was stricken from the record, was that her daughter was “at home; . . . she is in a delicate condition and is not able to be up”; confined to her bed; attended by a physician; “it has been a week or so she has not been able to be up and around”; that her husband was a foreman in a tire shop and that “he is working”.

It was not shown whether either of the absent witnesses had been served with a subpoena to appear at the trial; but manifestly that fact would pe immaterial to the point here presented. The question is not whether their failure to appear constituted a legal justification therefor, but rather is whether the offered excuse for the absence of the witnesses was in anywise material as affording an offset to the presumption that, if produced, the testimony of such witnesses would have been adverse to defendant’s claim of “alibi”. In other words, was the testimony that the sister of defendant was “in a delicate condition; . . . not able to be up,” etc., and that her husband was “working”,—such