People v. Abrams

BISHOP, J. pro tern.* — The two defendants, jointly charged in the fourth count of an amended information with having conspired to commit forgery in violation of sections 470 and 472, Penal Code, and to commit the crime of violating section 4463, Vehicle Code, were tried by the court without a jury and found guilty. Defendant Kay was placed on five years’ probation, a condition of which was that he spend 90 days in the county jail. It is from this “judgment of conviction” that he appeals. His codefendant Abrams’ motion for a new trial was denied and he was sentenced to serve a year in the county jail. He appeals from the order and the judgment. The defendants now represented by the same counsel jointly urge two grounds for reversals: That it was error to try them without a jury, and the evidence does not support the convictions in that no intent to defraud anyone was shown.

The defendants were arraigned first on August 10, 1961, and each entered a “not guilty” plea, waived time, and the trial was set for November 6. On that date, an amended information having been filed, they were again arraigned, each pleaded not guilty, each personally and by separate counsel waived a jury trial, as did counsel for the People, and the trial date selected was January 18, 1962.

When on January 18 the case was called for trial the People and defendant Kay answered ready but defendant Abrams made three requests: First, for a substitution of counsel; then consequent upon that for a continuance to enable his attorney to prepare for trial; and lastly for a jury trial. After some discussion Mr. Ash was substituted as defendant Abrams’ counsel and while word was being awaited from another department concerning a possible trial date the request of defendant Abrams for a jury trial was considered. It was opposed by counsel for the People: “This thing has been carried on for six or seven months here. Now, if we start back as a jury trial, we are going to have to run into the problem of having to set it weeks or months ahead to find a place to spot it.” Judge Fox thereupon denied the request and it was then that the clerk reported that “all the Mondays in February are now overset with jury trials” and the case was reset for trial on March 5 — ■ a Monday.

[775]All parties answered ready when the ease was called on March 5 and it was stipulated in effect that the testimony of certain witnesses given at the preliminary hearing be read by Judge Noble, the trial judge; be deemed given at the trial; that the twenty some exhibits introduced at the preliminary be received in evidence and that the stipulations, once given, remain binding.