In re Shivell

DORAN, Acting P. J. The applicant herein appeared in the municipal court charged with the violation of section 510 of the Vehicle Code.

The petition for the writ recites, “That on August 26, 1955, Arthur Shivell, the applicant herein was arraigned upon a charge of violation of section 510, Vehicle Code, to wit: traveling alleged 49 miles per hour in an alleged 35-mile zone. That the applicant plead guilty, and was fined $15, or 3 days, and that he forthwith paid into the hands of the clerk of said court the sum of $16 as and for payment in full of said fine. That the said clerk received into his hands without objection, the said entire sum of money, in payment thereof, which said sum was in silver coins of the United States, to wit: dimes, which said applicant had received in the course of a business operated by him, to wit: a coin-operated music machine route. That the said clerk said he would count the coins, to which the applicant agreed. That the said clerk was then and there assisted by two other clerks, [838]who carried on all clerkly duty whilst he was engaged as hereinafter set forth, and although in all, said applicant was thus detained upward of one hour, he did not busy himself with any other clerkly duty. That at a later part of the period, the clerk broke the wrappers in which the coins had been carried by said applicant, and commenced to count them, but that he did not complete counting them, although he was not busied at anything else. Seeing this, the said applicant twice voluntered, for the convenience and accommodation of the clerk, to take the coins to the bank, which was in the same block, to be exchanged into paper bills, but that the clerk refused to permit him to do so. That said applicant himself, later, counted the coins in the courtroom, and that there was, as there had been, the entire sum of $16 which was at all times in the hands of the clerk. That at the end of said period, the said clerk went to the judge and whispered to him, and that, at said time, the coins were in possession of the said clerk, in loose form, at the clerk’s counter.

“That after the clerk had whispered to him, the two had whispered together and then the said judge upbraided the said applicant, stating that the applicant had falsely represented to the clerk that he had received the coins from the bank. That the applicant was not permitted to address the court, or to make any statement, but that the judge stated he would look into the matter, and that the applicant was now in the custody of the bailiff. That he was put into the prisoners room, where he remained for upward of % hour. That from the prisoners room, he was taken again into the courtroom before said judge, who took testimony from two of the clerks respecting said coins, directed solely to the question, whether or not the said applicant had said to the said clerk that he had received the coins from the bank. That the judge would not permit the said applicant to address the court, nor to ask any questions, nor to make any objections, nor to produce any evidence in his own behalf, nor to examine or cross-examine any of said clerks, and would not permit him to relate what had occurred, but stopped him from giving any testimony except his negative answer, and continued to admonish the applicant at each attempt to object, to keep still, to shut up. Then he stated that he believed the clerk, and that on that ground he vacated and set aside the aforesaid sentence of $15. or 3 days, and sentenced said -applicant to 3 days imprisonment without alternative of fine, in the City Jail. That the said applicant was then, upon his argument