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District Court of Appeal, Second District, Division 1, California.


Cr. 3278

Decided: February 07, 1940

Morris Lavine, of Los Angeles, for appellant. Earl Warren, Atty. Gen., and Eugene M. Elson, Deputy Atty. Gen., for respondent.

An information filed by the district attorney of Los Angeles county charged the defendant in counts 1 and 3 with a violation of section 288a of the Penal Code, while count 2 alleged the commission by him of certain acts denounced by section 288 of the Penal Code. Trial by the court sitting without a jury resulted in conviction of the defendant on counts 1 and 2 and his acquittal of the offense charged in count 3. A motion for a new trial was granted as to count 1, which was subsequently dismissed, and a like motion was denied as to count 2, whereupon the court pronounced judgment against the defendant on count 2, from which he prosecutes this appeal.

As a first ground of appeal it is urged that the court committed prejudicial error in denying the defendant the right to have the same judge who presided at the trial pass on the motion for a new trial as to count 2, and in the refusal of the judge presiding at the time the motion for a new trial was presented to hear argument that the evidence was insufficient to support the decision convicting defendant of the crime charged in count 2. In connection with this claim the record reflects the following proceedings as having taken place at the time the motion for a new trial was called for hearing and at which time a judge other than the one who presided at the trial was upon the bench:

“Mr. Gleason (Defendant's Counsel): This matter was heard before Judge Dockweiler without a jury, and being familiar with the facts I am wondering if it would not be advisable that he pass on the matter.

“The Court: Judge Dockweiler asked me to handle this. I asked him to handle all matters that were heard before him and thought he was going to do so, but something came up which made it impossible for him to be here and he made a special request that I handle all matters on his calendar this morning, including those where trials were had before him.

“Mr. Gleason: I was not making that request in criticism. Perhaps it would be admissible that your Honor become familiar with the facts as developed in the trial.

“The Court: I have read the probation officer's report.

“Mr. Gleason: Yes, but that is not sufficient. I would be willing that this matter be placed at the foot of the calendar, so that I may have more time to present this matter to your Honor.

“The Court: I would be glad to hear what you have to say. I don't want an extended speech, and I don't want you to cover what is already in the report, but anything unusual, I will be glad to hear it.

“Mr. Gleason: The report is what the boys told the probation officer when he was there, but I am referring to the evidence in the case, I don't believe the report goes into that.

“The Court: No doubt some of the same evidence was introduced at the trial. I am willing to hear what you have to say.

“Mr. Gleason: There were only two witnesses on behalf of the People.

“The Court: Don't argue that the defendant is not guilty because that is a settled matter. Judge Dockweiler found the defendant guilty.”

It is at once apparent that the conclusion of the judge hearing the motion for a new trial that the defendant was guilty and that his conviction was legally established was predicated solely and alone upon the fact that such judge had read the probation officer's report and that the judge who tried the defendant had found him guilty. On his motion for a new trial appellant was entitled to more than that. He was entitled to a review of the evidence; reconsideration of the weight of such evidence and of the credibility of the witnesses. The motion for a new trial was made pursuant to section 1181 of the Penal Code, one of the grounds of which is that a motion for a new trial must be granted “When the verdict is contrary to law or evidence”, and also when the court “has erred in the decision of any question of law arising during the course of the trial”. How a judge who did not preside at the trial and did not read the transcript of the evidence presented at the trial could determine either the sufficiency of the evidence or the correctness of the rulings made during the trial, is beyond our comprehension and understanding. A long line of authorities supports the statement that when any trial is had with the assistance of a jury, defendant is entitled to two decisions on the evidence, one by the jury and another by the trial judge in passing upon a motion for a new trial. Smith v. Royer, 181 Cal. 165, 171, 183 P. 660. This being true, it must of necessity follow that even though a jury be waived, the defendant is certainly entitled to a review of the evidence when he makes application for a new trial; and if such review produces a conviction of evidentiary insufficiency to support the decision theretofore rendered, it is the plain duty of the trial court to set aside the decision rendered and order a new trial. In the instant case appellant was denied such review of the evidence because, from the statement of the judge who heard the motion for a new trial, the only evidence to which he gave any consideration was that embodied in the report of the probation officer.

Extremely pertinent indeed, in our opinion, under the facts of this case, are the words of Webster quoted so often that by the “law of the land” is intended “a law which hears before it condemns”. Certainly there should have been some showing as to the absence of the judge who tried the case or his inability to hear the motion for a new trial, and if a sufficient showing thereof were made it became the duty of the judge hearing such motion to familiarize himself with the evidence given at the trial and the rulings made during the trial from a perusal of the reporter's transcript. In concluding that appellant was guilty upon the evidence contained in the probation officer's report and because “Judge Dockweiler found the defendant guilty”, the court denied appellant the right to show and urge the insufficiency of the evidence to justify the decision finding him guilty; thereby denying appellant due process of law in the determination of his guilt—a process guaranteed by both the federal and state Constitutions.

While the Penal Code makes no specific provision that the judge who tried a criminal case shall hear the motion for a new trial therein, nevertheless section 4480 of the Political Code reads, “With relation to each other, the provisions of the four codes must be construed (except as in the next two sections provided) as though all such codes had been passed at the same moment of time, and were parts of the same statute,” and section 661 of the Code of Civil Procedure provides in part as follows: “The motion for a new trial shall be heard and determined by the judge who presided at the trial; provided, however, that in case of the inability of such judge or if at the time noticed for hearing thereon he is absent from the county where the trial was had, the same shall be heard and determined by any other judge of the same court. *” Such being the law with reference to the adjudication of property rights, how much more so should a litigant whose liberty is at stake be entitled to the same safeguards in the matter of determining his motion for a new trial. No showing having been made as to either the absence of the judge who tried the case or his inability to hear the motion for a new trial, it was error for any other judge, under the circumstances and the facts disclosed by the record herein, to determine the same. The defendant having been denied due process of law in the matter of determining his motion for a new trial, the judgment pronounced against him must be set aside.

By reason of the foregoing, other points raised do not demand our consideration.

For the foregoing reasons, the order denying defendant's motion for a new trial is reversed, and the cause remanded, with directions to the court below to hear and determine the motion for a new trial in accordance with the views herein expressed.

WHITE, Justice.

We concur: YORK, P.J.; DORAN, J.

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