PEOPLE v. MILLS (1940)

The respondent has petitioned for a rehearing herein on the sole ground that the attorney general now requests, pursuant to Penal Code section 1252, that this court consider and pass upon several rulings of the trial court, whereby certain evidence was excluded, which were adverse to the state. This request is now made for the first time. As the case was originally presented the respondent did not even mention the fact that any evidence had been excluded and confined its argument to certain legal issues raised by the appellant which had no connection with the sufficiency of the evidence. Without questioning our decision on the issues submitted, the respondent seeks to have that decision set aside to the end that new and additional issues may now be considered.

Section 1252 imposes upon an appellate court the duty of considering rulings adverse to the state when requested so to do by the attorney general, even though the appeal is taken by the defendant. That is a salutary provision, its purpose is obvious, and its benefits, in the event of a new trial, may be considerable.

However, this section undoubtedly contemplates that it is to be invoked and such a request made, when the cause is presented and before it is submitted for decision upon an appeal. It was surely never intended by this section to make it the duty of an appellate court to grant such a request unless the same was properly and timely made. It was not intended thereby to permit the issues to be divided and presented piecemeal, or to permit one of the parties to rely and submit his case upon some of the issues and, in the event of an adverse decision on those issues, to have further hearings and further decisions upon new issues which might later be raised. Such a procedure would not only impose unnecessary work on the courts but would work an injustice on other litigants whose cases would be correspondingly delayed.

While the issues now raised happen to be very pertinent in the instant case, we are of the opinion that any benefits that might accrue from considering them at this time would be far outweighed by the evils that might well be expected to follow the setting of such a precedent.

For the reasons given, the petition for a rehearing is denied.

PER CURIAM.