PEOPLE v. MANCHETTI (1946)

Defendant was indicted on two counts: robbery while armed with a deadly weapon and violating sec. 209 of the Penal Code. These offenses are alleged to have occurred on November 13, and 14, 1940. The charge in the second count—kidnapping—was dismissed on motion of the district attorney. Defendant admitted a prior conviction and now appeals from the judgment of conviction of robbery while armed with a deadly weapon and from the order denying a new trial.

The prosecution rested its case on testimony showing that defendant and one Pelizzari came to the place of business of the prosecuting witness, Rose Pesce, who admittedly operated a house of prostitution known as the Depot Rooms, in Benicia, California, at about 11 a. m., November 13, 1940, and kept her under constant terror from threats, guns and physical violence until she directed her maid to give them $500, and further agreed to go with the two men to her safe deposit box in San Francisco to secure $1,000. On November 14, 1940, still under threat of bodily harm, she accompanied the two men to her bank in San Francisco and, followed by Manchetti, went to her safe deposit box and took out the $1,000 and gave it to him. This story may seem improbable, but the jury may have considered that the victim was operating a house of prostitution and was reluctant to report the matter to the authorities. The testimony of the prosecuting witness was supported by other evidence, including that of David T. Edwards, a shell-shocked soldier, who, prior to the war, had testified before the Grand Jury that on the night of Nov. 13, 1940, he lived in the rear cottage of the Depot Rooms, some 15 feet from the main building, and that he heard certain threats made by the two men against the prosecuting witness. There is also the testimony of the maid, Edna R. Arnold, who got the $500 out of a ‘strong box’ and who was present during the entire proceedings covering two days; also testimony of one of the bank employees who saw the prosecuting witness and defendant enter the safe deposit vault together on November 14, 1940. There was rebuttal evidence that a night watchman who called twice every night saw the witness Arnold in the Benicia house on the nights in question.

The appellant notes various points as grounds for reversal. Some of them may be considered with others, so that it seems fair to say that the main grounds are: Whether defendant was deprived of counsel of his choice; whether the testimony of a certain witness was properly before the jury; whether certain instructions given on the subject of punishment were proper; whether certain refused instructions should have been given; whether certain comments made by the district attorney were prejudicially erroneous, and whether the court erred in denying a new trial if value is given to the affidavits used on such motion.

There is no special claim that the evidence is insufficient to support the verdict though the veracity of many of the witnesses is attacked. Only the evidence relative to the points in which it is claimed there is error need be set forth in detail. Preliminarily it should be said that many of the facts testified to by witnesses for the state and for the defense are contradicted by other witnesses. A fair sample appears in the testimony of a sister-in-law of the complainant who testified that she performed housework consisting of laundry and cleaning at the Benicia establishment. The sister-in-law testified that Edna R. Arnold, a colored woman, who corroborated the complaining witness on many of the factual matters, was not working or living at the Benicia house on the 13th or 14th of November, 1940. The husband of the sister-in-law testified that his wife never at any time lived or worked in the Benicia house; that on the contrary on the dates in question she lived in Vallejo.

The principal question on appeal, namely, whether defendant was arbitrarily deprived of the right of counsel of his own choice, is based upon the following incidents occurring prior to and during the trial. The indictment was presented December 15, 1941. The case had been continued a number of times because the defendant was not within the jurisdiction of the court and had not been apprehended, though no claim of ‘flight’ is made by the People, and no instruction was given on that subject. On June 2, 1944, the record shows that the defendant Manchetti was arraigned, and at his request the cause was continued to plead. Seven days later a plea of not guilty was entered to the offense charged and the defendant admitted that he had suffered a prior conviction of a felony. Thereafter numerous continuances ‘to be set’ were ordered ‘by consent’ of the respective parties. The record also shows that some of the continuance were ordered without reference to ‘consent.’ On May 24, 1945 the trial actually started by the empanelment of a jury in the absence of the attorney, Nathan C. Coghlan, who appeared in the preliminary proceedings. An attorney, Mr. Andrews, who appeared on behalf of Mr. Coghlan to request a continuance, was instructed to proceed with the trial. On May 25, witnesses, including the complainant, her maid, Mrs. Arnold, and Mr. Edwards were sworn and testified. On May 28th, by consent, Mr. Andrews withdrew as counsel for defendant, and the present counsel, Mr. Coghlan, was substituted. Thereupon a three day continuance was ordered at which time the trial proceeded.

Several days prior to the commencement of the trial the present counsel appeared and notified the court that on the date set he would be engaged in the trial of a criminal case in an adjoining county. The district attorney's office opposed the continuance at that time and stated: ‘* * * we have subpoened foreign witnesses who are presently within the jurisdiction of the city, and ready for trial.’ At a later date the following statement was made: ‘We're put in this position, your Honor, that we've brought for the purpose of this trial a foreign witness into the jurisdiction, one from out of the State, and another from Los Angeles, and other witnesses are from Albany, California. They are all here and we're ready to proceed.’ No witness from another state or from Los Angeles testified and so far as the record on appeal discloses no such witnesses were placed under subpoena. There is no evidence that the statement of the district attorney was false.

On the day set for trial when Mr. Andrews appeared to ask for a continuance on behalf of Mr. Coghlan, the present counsel, Mr. Andrews read a telegram to the effect that Mr. Coghlan was actually engaged in a trial in San Mateo County and he requested a continuance to any day during the following week. The court's attention was called to the fact that Mr. Coghlan was the choice of the defendant and that Mr. Andrews was not familiar with the facts of the case. Once more a representative of the district attorney called attention to ‘witnesses who have come from Los Angeles.’ The court, upon the statements made by the district attorney and for other reasons, determined: ‘We will proceed with the selection of a jury, and then after we select the jury the Court will take a reasonable recess to enable you [Mr. Andrews] to familiarize yourself with the facts of the case.’ Whereupon the following occurred:

‘The Defendant: May I say something?

‘The Court: No, you just sit down and follow the advice of your lawyer. All right, call the roll of jurors, Mr. Clerk.’

On the next day the record shows the following:

‘The Defendant: This other lawyer, he's gone, and he wants money and I have no money, I've paid Mr. Coghlan.

‘The Court: Go see if he is in the hallway.

‘The Defendant: He's asked for some money, and I have no money.

‘The Court: We will see that you have counsel whether you have money or not. All right, here is your counsel, Mr. Andrews, so don't worry. He thought maybe his counsel had disappeared.

‘Mr. Andrews: I would like to, your Honor. I would prefer that Mr. McDonald take this matter over.

‘The Court: No, you are in the case. You will have to stay in. The same thing happened to me before Judge Trabucco and he said ‘No, the Court is satisfied you can do a very fine job,’ and I feel you, Mr. Andrews, will do a very fine job.

‘The Defendant: Mr. Coghlan, he'll be here to-night or to-morrow morning. He would be willing to go on to-morrow morning.

‘The Court: Mr. Andrews will very ably represent you.’

Two issues arise from the facts just enumerated: (1) Was defendant deprived of his constitutional right to counsel? (2) if not, was the denial of the motion for a continuance prejudicially erroneous? People v. Lanigan, 22 Cal.2d 569, 140 P.2d 24, 148 A.L.R. 176 and In re Egan, 24 Cal.2d 323, 149 P.2d 693, are factually so different that they are of little assistance in determining the problem presented on this appeal, but in each decision certain legal views are expressed that are pertinent to the issues stated above. The theory upon which a reversal was ordered in the Lanigan case rested upon the conclusion that no effective appointment of counsel was made, which is in violation of art. 1, sec. 13 of the California Constitution, similar to the rights conferred on defendants in federal courts by the fifth and sixth amendments to the Constitution of the United States.

The facts in the Lanigan case are set forth clearly in the following holding (22 Cal.2d at page 577, 140 P.2d at page 29, 148 A.L.R. 176): ‘So in the present case there was a failure to make an ‘effective appointment of counsel.’ It must therefore be concluded that the trial court erred prejudicially in forcing the defendant Giardano to share the attention and efforts of his counsel with the other defendant, and that the court likewise so erred in forcing the defendant Lanigan to be represented by counsel who did not wish to represent him, who objected to the order of the court appointing him and who did not feel that he could properly represent him. In such circumstances counsel was not in a position freely to decide what was most advantageous for the defense of one client without weighing against it the disadvantage that might result to the other.' ‘In Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, it was stated that ‘the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment.’' In Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, one of the accused, Glasser, wished to have the undivided attention of counsel of his own choice. The denial of such privilege in view of the facts of that case warranted the assumption that prejudice arose from the mere denial. The accused in the Glasser case had no opportunity to confer with the appointed counsel. Here there is no claim that defendant was not permitted to confer with Mr. Andrews.

Subsequently the Supreme Court of California clearly and definitely stated the rule as follows: ‘The petitioner places great reliance on language appearing in the Glasser case, and applied in the Lanigan case, that the right under consideration was a fundamental right and that courts should not indulge in nice calculations as to the amount of prejudice arising from its denial. So here also we are not concerned with nice questions of prejudice. A showing of a substantial deprivation of the right is essential. Unless the petitioner has established such a deprivation he may not prevail in this proceeding.’ In re Egan, supra, 24 Cal.2d at page 338, 149 P.2d at page 701. It should be concluded that the test is that there must be a ‘substantial deprivation’ of the right of the selection of counsel of the choice of the accused before it may be determined without reference to prejudice that constitutional rights have been infringed. Every small infringement of a constitutional right does not in and of itself, without a showing of resulting prejudice, require a reversal in a criminal case. People v. O'Bryan, 165 Cal. 55, 130 P. 1042; People v. Mayfield, 85 Cal.App. 77, 259 P. 75; People v. Peterson, 120 Cal.App. 197, 7 P.2d 366; People v. Looney, 9 Cal.App.2d 335, 49 P.2d 889; People v. Watts, 198 Cal. 776, 247 P. 884.

The question of prejudice may better be considered in relation to the denial of the motion to continue the case for trial until Mr. Coghlan could appear. It is suggested by appellant that Mr. Andrews, unfamiliar with the case, could not intelligently interrogate the prospective jurors. Appellant admits that Mr. Andrews is a lawyer of ability. Whether his unfamiliarity with the facts precluded him from thoroughly examining the jurors on their voir dire is a question that may not be decided on this appeal due to the absence from the record of such proceeding. In the request for a transcript to use on appeal the following appears: ‘And the appellant further requests the transcription of all the notes of the reporter of all the oral proceedings taken at the trial of the above entitled cause, excepting the examination of the ‘jurors' as to their qualifications.’

Whether the statements made by the representative of the district attorney relative to the appearance of a witness from without the state and witnesses from Los Angeles was an imposition on the court need not be decided upon the present record. However, there was no suggestion by Mr. Coghlan, in support of his application for a continuance, that the testimony of these witnesses might be taken in the presence of the defendant and used on a trial continued to a subsequent date. The statements in relation to these witnesses who never appeared in the trial indicate that at the time the statements were made the district attorney declared that the witnesses were in the City and County of San Francisco.

On the day the jury was selected, and the subsequent day when evidence was presented, the effect of the objection of the defendant was that defendant preferred Mr. Coghlan. The objection was not based upon defendant's doubt of the ability of Mr. Andrews to protect the legal and factual rights of the accused. It was, as stated, based upon the grounds of preference for Mr. Coghlan, and that Mr. Andrews demanded a fee, which defendant was unable to pay. On the second morning, Mr. Andrews stated that he would prefer that the public defender ‘take this matter over,’ but there was no objection that counsel had not been given ample time to interview the accused. According to California cases sufficient time was given Mr. Andrews to prepare and to permit the defendant to discuss the case with counsel. People v. Maddox, 65 Cal.App.2d 45, 149 P.2d 739 (petition for hearing by Supreme Court denied); People v. Peterson, supra; 8 Cal.Jur. 211.

After two days of presentation of evidence Mr. Coghland appeared and took over the burden of conducting the trial. Mr. Andrews, with the consent of the defendant, withdrew from the responsibility of the case. On the last previous hearing Mr. Andrews had requested, and the court had admonished: ‘All witnesses in the courtroom, who have been on the stand, but who haven't been fully cross-examined,’ to return on the next day of trial. All witnesses that Mr. Coghlan desired to cross-examine, except one, were returned to the witness stand, thereby giving appellant two opportunities to cross-examine. Up to this point no possible error prejudicial to the defendant appears in the record.

The crux of the problem of prejudice rests upon the appearance of one witness, Edwards, and the court's refusal either to strike his testimony from the record or have him re-called for further testimony. Edwards was the first witness called by the People. He testified that he lived in Benicia on November 13 and 14, 1940, in a room 10 or 15 feet from the main premises run by Mrs. Pesce; that he paid rent to the maid but was acquainted with Mrs. Pesce and that he had seen the defendant. He also testified that there was some confusion in his own mind relative to the incident. He said that there was a commotion in the main building on the night of November 13, 1940; that he recognized Mrs. Pesce, Mrs. Arnold and Manchetti, ‘and I saw the fellow I believe they call him Pelizzari or Webb.’ Edwards testified that Manchetti said: ‘I want the money now.’ Subsequently he testified that he was not sure whether it was Manchetti or Pelizzari who made the foregoing statement. He also testified that Manchetti said: ‘If we don't get it one way we'll get it another,’ and that at that time Manchetti had a gun in his hand and that Mrs. Pesce replied: ‘I haven't got it.’ On cross-examination by Mr. Andrews he testified that it could have been Pelizzari who said: ‘If we don't get it one way we'll get it another,’ but that it was Manchetti who had the gun. When shown his testimony taken before the Grand Jury that he had testified that it was Pelizzari who had the gun, the record shows the following:

‘A. Sir, that was four years ago. I don't remember. I have been overseas, and there's a lot of things I don't remember. I don't know why I'm up here sometimes.

‘The Court: Just give us your best recollection. A. That's my best recollection.

‘Mr. Andrews: Q. This was your testimony before the Grand Jury? A. Before I was in the army, yes, sir.

‘Q. And you testified before the Grand Jury as to the question asked you as to who had the gun. You heard the question and that was your testimony then? A. Yes, sir, as far as I understand it is, yes, sir.

‘Q. Now, then, Mr. Edwards, your recollection is somewhat hazy about the whole affair, isn't it? A. Will you say that again.

‘Q. Your recollection about the whole affair is rather hazy, isn't it? A. Apparently they think so, yes, sir.

‘Q. You are not really sure of what did go on there, are you? A. All this confusion, sir, I am rather hazy.

‘Q. Yes. A. I'd like to be excused.

‘Mr. Perry [Assistant District Attorney]: Well, I'm afraid that is not possible.

‘Mr. Andrews: No objection, your Honor.

‘The Court: Were you wounded overseas? A. No, sir, I'm shell-shocked.

‘The Court: Well, all this did happen four years ago, and it wouldn't be surprising to have his recollection somewhat hazy with what he apparently has gone through.’

Several sessions after Mr. Coghlan's appearance the request was made that Edwards should be called for further cross-examination. Recalling a witness for further interrogation is a matter within the discretion of the trial judge. ‘A witness once examined cannot be re-examined as to the same matter without leave of the court, but he may be re-examined as to any new matter upon which he has been examined by the adverse party. And after the examinations on both sides are once concluded, the witness cannot be recalled without leave of the court. Leave is granted or withheld, in the exercise of a sound discretion.’ Code Civ.Proc. sec. 2050. In the present case two important details appear in the direct examination, namely, who made a verbal threat and who held a gun. On direct examination, with some hesitancy by reason of evasive answers, Edwards testified that it was Manchetti. On cross-examination by Mr. Andrews he admitted in each instance it could have been Pelizzari; that he was hazy about it all. What Mr. Coghlan could have elicited to the benefit of the defendant that was not covered by Mr. Andrews is vague as Mr. Coghlan did not present what further testimony he expected to elicit. The witness' ability to observe accurately, to recall the events testified to and to relate those events was successfully attacked from the standpoint of the defense by Mr. Andrews on cross-examination. The generally accepted rule in presenting a request to have a witness recalled to testify is to enumerate the subjects of the proposed cross-examination—the new matter relative to subjects whereon the witness was cross-examined or the new matter that has been discovered since the previous cross-examination. Mullia v. Mayer, 217 Cal. 209, 17 P.2d 705; Norton v. Blenkiron, 138 Cal.App. 66, 31 P.2d 807; People v. Searing, 20 Cal.App.2d 140, 66 P.2d 696; Chamberlain v. Chamberlain, 114 Cal.App. 591, 300 P. 100; 27 Cal.Jur., pp. 111, 112. Under the circumstances as they appear from the record the trial court did not abuse its discretion in refusing to recall Edwards as a witness.

The motion to strike the testimony is equally without merit. The motion here referred to all and not a part of the testimony of witness Edwards. A motion to strike testimony from the record is confined to the admissibility of the evidence and not to the credibility of the witness except in the instance where such evidence would leave the record silent on a vital issue. In the present case if the evidence had been stricken out, the record still contained similar evidence given in the testimony of Mrs. Arnold and Mrs. Pesce. ‘A party cannot insist that competent and relevant evidence be stricken out for reasons going to its weight, sufficiency, or credibility, at least unless elimination of such evidence could be decisive of the whole case; and in some jurisdictions it is held that the court has no authority to strike out evidence on such grounds.’ 64 Cor.Jur., p. 210, sec. 220. The ‘haziness' and lack of memory of witness Edwards went only to the weight of the evidence and not to its admissibility, hence the motion was not well taken. It is the province of the trier of the facts to pass on the credibility of a witness. People v. Carlisle, 66 Cal.App.2d 874, 153 P.2d 401; People v. Johnson, 46 Cal.App.2d 63, 115 P.2d 605. When the case is tried before a jury the judge has nothing to do with the credibility of witnesses except on a motion for new trial. This court is not prepared to say that any error could be based upon a refusal on the part of the court to recall a witness who had been previously interrogated on cross-examination on the issues elicited on the direct examination; nor may a motion to strike all such evidence from the record be the basis of prejudicial error where ‘it is apparent that the situation was both unusual and one calling for consideration and discretion upon the part of the trial court.’ Chamberlain v. Chamberlain, supra, 114 Cal.App. at page 595, 300 P. at page 101. Incidentally the record shows that defendant sought to subpoena Edwards after the appearance of Mr. Coghlan in the case and that Edwards could not be found. The motion to recall Edwards for further cross-examination was made after the case for the People had been presented and when the defense had been unsuccessful in subpoenaing Edwards.

The conclusion reached on the last point raises a further contention by appellant. It is urged that if the testimony was not stricken that appellant was entitled to have an instruction given pointing out the factors of credibility to be weighed in respect to Edwards' testimony. It is a dangerous procedure to address an instruction to the reliability of a specifically named witness. ‘The court should not single out witnesses for instructions as to the weight to be given their testimony. Thomas v. Gates, 126 Cal. 1, 58 P. 315; Estate of Blake, 136 Cal. 306, 68 P. 827, 89 Am.St.Rep. 135; Juchert v. Tenent, 126 Cal.App. 216, 14 P.2d 617.’ County of San Mateo v. Christen, 22 Cal.App.2d 375, 382, 71 P.2d 88, 91. (8petition for hearing by Supreme Court denied.) The foregoing statement appears to be a judicial rule that must be followed notwithstanding Penal Code sec. 1093, subd. 6 enacted pursuant to the provision of art. VI, sec. 19 of the Constitution of this state. ‘It will be noted that the constitutional provision above quoted by its terms imposes no restriction on the nature of the comment except that the jury must be instructed that it is the exclusive judge of fact and credibility.’ People v. Robinson, Cal.App., 166 P.2d 17, 19. ‘The provision in the Constitution expressly permits the court to ‘make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case.’' People v. Ottey, 5 Cal.2d 714, 728, 56 P.2d 193, 200. There does not appear from the facts in this case good reason why a court should emphasize its opinion that a general rule is particularly applicable to the testimony of a specifically named witness. In the present case appellant, upon the invitation of the court, requested an instruction relative to Edwards as a witness, nothing as factors in determining his credibility his ability as a witness to testify coherently and to remember as an enlargement upon the general instructions as to weight of testimony. The proposed instructions read: ‘And in this connection I desire to call your attention to testimony of the witness David T. Edwards. (This witness declared in his testimony that he was ‘shell shocked,’ and that as to the things he testified doubt, that ‘all this is confusion’ and that he was ‘rather hazy.’) I charge you, that you are the sole judges of the worth or value or credibility of the testimony of this witness, (and of every other witness) (If you believe from his appearance, or manner upon the witness stand, or from his own statement, he was incapable of observing, remembering, or communicating what he may or may not have seen or heard, it will be your duty to assess the weight and value, if you believe it has any weight or value, in this case, of such testimony. And if you have a reasonable doubt as to whether any weight should be given his testimony, you should resolve that doubt favorably to the defendant.)' It is not clear from the record whether the parenthesized portions are ‘proposed’ or court inserted portions. However, the court thereupon prepared another instruction reading: ‘The Court further instructs the jury they are the sole judges of the weight to be given to the evidence of any witness who may have testified in this case. And in this connection I desire to call to your attention the testimony of the witness David T. Edwards. I charge you that you are the sole judges of the worth or value or credibility of the testimony of this witness, and of every other witness.’ Appellant now states that the court erred in naming Edwards in his charge to the jury inasmuch as the instruction as given merely emphasized the disputed testimony.

A trial judge may make any comments deemed necessary properly to determine the issues in the case (People v. Ottey, supra) and is not require to comment on all the evidence (People v. Dail, 22 Cal.2d 642, 140 P.2d 828) and should be cautious with a view to protecting the defendant's rights. People v. De Moss, 4 Cal.2d 469, 50 P.2d 1031. When the court's instructions are read with other given instructions it appears that all material matters were covered fairly and no undue emphasis was given to Edwards' testimony that could prejudice the cause of appellant.

The following series of minor matters are relied upon to justify a reversal. In his closing argument to the jury the district attorney in charge of the prosecution of this case made the following statement: ‘Now, we come to the testimony of the defendant, which I anticipate the Court will instruct you stands impeached here by reason of his previous conviction of a felony. For that reason you are at liberty to disregard it in this case.’ Appellant prepared the following instruction: ‘The Court instructs the Jury, that the testimony given by this defendant, as to his previous conviction of a crime does not raise any presumption that he is guilty of the offense for which he is here on trial. The defendant cannot be convicted of the crime charged because he has stated that he suffered a previous conviction, and that fact was not allowed to go to your attention in order to prove him guilty of the crime charged, nor are you allowed to consider that fact as in any way tending to prove that he committed the crime charged.’ The proposed instruction was fully covered by the following instructions: ‘Now, the Court instructs the jury that the burden of proving what is here charged against the defendant is on the prosecution. The defendant has a right to testify or not to testify, as he chooses to do. In this case the defendant took the witness stand.’ ‘Every witness is presumed to speak the truth. The defendant in this case is entitled to the benefit of this presumption in common with the other witnesses. You are not to discredit or give less value to his testimony merely because he is accused of a crime in this particular indictment.’

‘The Court instructs the jury this defendant is on trial solely for the crime of robbery as described in the indictment. He is not here charged with the commission of any other crime, and the only ultimate fact for you to find here is did he rob the complaining witness of the sum of $1500 as charged. He is not on trial for doing any other thing. You are instructed you have no right to consider the fact that the complaining witness may or may not have blamed him for other acts as proof against him in this case.’ ‘Proof or evidence of a previous conviction of a felony is admitted, and may be here considered for the purpose of impeachment of the defendant as a witness, and for no other purpose.’

Proof of a conviction of a felony is not necessarily in and of itself an impeachment of all the sworn statements made by a witness. Contradictory statements or evidence that the witness' general reputation for truth, honesty and integrity is bad, or proof of a conviction of a felony, are methods prescribed in the Code of Civil Procedure, sec. 2051, that may be considered as evidence tending to impeach an adverse witness. The section provides: ‘A witness may be impeached,’ etc. ‘The proof authorized by the code provision is admitted solely for the purpose of discrediting a witness.’ 27 Cal.Jur., pp. 139, 140, sec. 115; People v. McLane, 60 Cal. 412; People v. Hardwick, 204 Cal. 582, 269 P. 427, 59 A.L.R. 1480; 70 Cor. Jur., pp. 847, 848, sec. 1052. The argument of the district attorney in this respect is not a correct statement, but the instructions of the court fully covered the subject and no prejudicial error is apparent.

The district attorney in his argument also made the following statement: ‘As you know, this case was initiated by the Grand Jury in 1941, and that means, ladies and gentlemen of this city and county listened to the testimony of the complaining witness, Mrs. Arnold and David Edwards, and there was probable cause that a crime had been committed and the defendant was guilty of the crime.

Mr. Coghlan: We are going to object to that, your Honor. The Grand Jury is merely an accusatory body.

‘The Court: I think the jury understands this is merely argument of counsel. The argument of counsel on both sides is just argument and not evidence in the case, and may be considered as argument and an aid in arriving at their verdict, in addition to the evidence in this particular case.’

The statement was inadvisable but not prejudicial in view of the court's admonition. The appellant complained of the court's instruction: ‘With regard to any punishment that may be imposed upon a defendant convicted of such an offense, the jury has nothing to do. The question of punishment, when and if it does arise, is one entirely for the Court to determine, and the jury is not concerned with this question at all.’ That portion of the instruction to the effect that the determination of punishment lies entirely in the hands of the court is an inaccurate statement. However, whether the court or a board, or both, may have some duty in determining if and what punishment there shall be is immaterial so long as the jury was instructed that in this case the jury should not be concerned with the question of punishment. Any error in the instruction could not have been prejudicial.

With respect to the motion for new trial the appellant contends that the trial court erred in denying the motion in view of the affidavits presented to the trial court at that time. Four affidavits by Manchetti, Mrs. Patricia Wallace, Ernest F. Wickersham and Rita Gomez were filed. The first affidavit submitted was dated June 15, 1945 and signed by appellant Dante Manchetti. It relates the various dates of continuances of the trial and that the jury was empaneled on May 25, 1945; that the verdict was returned on June 5, 1945; the defendant was arraigned for judgment and presented a motion for new trial on June 9th and the motion continued until June 15, 1945 for hearing. The Manchetti affidavit avers ‘that if a new trial is granted in this case, the evidence of said witnesses will contradict the evidence of Rose Pesce, the complaining witness in this case and will show that Rose Pesce was not in the house at Depot Rooms on the 13th or 14th days of November, 1940.’ Appellant also averred that the occupants of the Benicia house ‘were diligently sought for by affiant’ but that he was unable to get in contact with them until after the trial. There is no explanation of why, in view of the efforts of the defense, the witnesses were not found. Patricia Wallace signed an affidavit to the effect that she was present with Rose Pesce, Rita Gomez and Paul Wallace at the time ‘that the defendant in the case was on trial,’ and also a few days prior thereto, and on each occasion Rose Pesce in effect stated to Rita Gomez “if you are ever called as a witness, say that you were not present at the depot Rooms on the 13th or 14th of November, 1940.” Paul Wallace did not file an affidavit and Patricia Wallace failed to state the date of such conversations, though they were comparatively recent. Ernest F. Wickersham in an affidavit averred that he and Rita Gomez were living at the premises in Benicia at that time (referring to the November 13, 14, 1940); that he had lived there since November 5, 1940 and that neither Manchetti nor any one else came to the establishment either at night time or day time to assault or abuse Rose Pesce; that Edna R. Arnold ‘was not either living or working’ at the house during the month of November, 1940. It should be noted that this affiant does not deny that Rose Pesce lived at the ‘Depot Rooms' on November 13 and 14, 1940 or at other periods in November. The affidavit also sets forth that Rose Pesce ‘whom affiant dealt with under the name of Olive Rose, was proprietress until the month of November, 1940; that on November 1st, 1940 affiant handed to said Rose Pesce at the Bay Bridge Inn Berkeley, California, the sum of $1,000.00, $200.00 of which was for the rental of the Depot Rooms begining November 1st, 1940 and $800.00 of which was for the business, including furnishings, as shown in a contract of sale to Rita Gomez of said Depot Rooms.’ The Rita Gomez affidavit sets forth that she is ‘acquainted with Rose Pesce’ and ‘knows Dante Manchetti’; that a few days before November 1, 1940 affiant agreed to purchase from Rose Pesce the ‘Depot Rooms' in Benicia, including fixtures, furnishings, etc.; that ‘between the 1st day of November, and the 7th day of November, 1940 a contract of sale of the premises and property * * * was signed and delivered * * * to * * * affiant’; that a receipt for $200 for the rent of the property and $800 as a down payment on the contract of sale was given by Rose Pesce to Wickersham for Rita Gomez and that such receipt bears the date November 1, 1940; that affiant during the whole month of November, 1940 lived at the Depot Rooms as the proprietress; that during the whole month of November Mary Marzi, the sister of Rose Pesce, worked at the ‘Depot Rooms' as housekeeper and that Rose Pesce, Mary Marzi, Wickersham and affiant took part in making up an inventory. Two intentories are attached to the Gomez affidavit as exhibits, but each one appears ‘Approved as correct November ___, 1940.’ A notice of intended sale, dated in October, and the receipt for $1,000 heretofore referred to are also exhibits on motion for new trial, but the contract of sale is not part of this record. Rita Gomez' affidavit also sets forth that Marian Gianquento, a sister-in-law of Rose Pesce, during the month of November 1940 worked at the Depot Rooms but that Edna R. Arnold, familiarly called cEddy', was not working there and ‘was not there at any time during November 1940. Affiant then avers ‘that affiant knows of her own knowledge that neither Dante Manchetti nor Albert Pelizzari nor any other person demanded from said Rose Pesce or took from her the sum of $500.00 or any other sum of money; and that no disturbance of any character occurred and no abusive language was used by anybody toward any other person on any day during the month of November, 1940 * * *; that affiant does not know David T. Edwards who testified in this case; but she does know of her own knowledge that said David T. Edwards did not during the month of November, 1940 at any time reside in or about the premises known as The Depot Rooms, and that such man as David T. Edwards came to said Depot Rooms or was known to her at all.’ The Gomez affidavit then sets forth in very similar detail the conversation related in the Wallace affidavit. Finally ‘that she did not tell anyone what she knew about said case; that neither the defendant nor any of his attorneys nor anyone else who testified at the trial of this case was told anything about affiant's knowledge as hereinabove related, nor did they know anything about said conversations or any matter which she has sworn to in this affidavit so far as she knows, or is informed or believes.’

Before a trial court's action in denying a new trial on the ground of newly discovered evidence will be reversed it must appear that due diligence to discover the evidence has been shown. ‘It is conceded by appellant that the granting or denial of a motion for a new trial on the ground of newly discovered evidence rests in the discretion of a trial court. * * * People v. Mandell, 48 Cal.App.2d 806, 818, 120 P.2d 921; People v. Yeager, 194 Cal. 452, 491, 229 P. 40; People v. Paysen, 123 Cal.App. 396, 401, 11 P.2d 431; People v. Taminago, 35 Cal.App. 238, 239, 169 P. 696; People v. Del Prado, 49 Cal.App.2d 597, 599, 122 P.2d 76.’ People English, 68 Cal.App.2d 670, 673, 157 P.2d 429, 431. It appears that there was ample time to prepare defendant's case between June 2, 1944, the date of the arraignment, and May 25, 1945, the date of the empanelment of the jury. Mrs. Pesce's sister and her sister-in-law were available to give the defendant the required information. The affidavits are merely corroborative. In support of his position that a new trial should have been granted, appellant asserts that this ‘newly discovered evidence’ would have contravened important facts in the prosecution's case, and stresses the failure of the People to introduce counter-affidavits as a circumstance which should be weighed in granting or denying the motion. The lack of counter-affidavits may or may not evidence lack of diligence on the part of the State. The evidence introduced by the People and by the defense separately or taken together was sufficient to overcome the subjects touched upon in the affidavits. People v. Egbert, 43 Cal.App.2d 117, 110 P.2d 495. ‘Public policy demands that a litigant should be compelled to exhaust every reasonable effort to produce at his trial all existing evidence in his behalf. It has been said that the circumstance that the testimony has just been discovered when it is too late to introduce it is so suspicious that courts require the very strictest showing of diligence. People v. Freeman, 92 Cal. 359, 366, 28 P. 261. It is recognized, however, that despite the exercise of such effort, cases will sometimes occur where, after trial, new evidence most material to the issues and which would probably have produced a different result, is discovered. For such cases the remedy of a motion for a new trial on the ground of newly discovered evidence has been given. People v. Byrne, 160 Cal. 217, 225, 116 P. 521. As declared by subdivision 7 of section 1181 of our Penal Code, the court may grant a new trial ‘when new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.’' People v. Shepherd, 14 Cal.App.2d 513, 517, 518, 58 P.2d 970, 972. In the Shepherd case another party had admitted the commission of the offense, had been charged and convicted of the identical offense and judgment had been pronounced. The propriety of an order for a new trial under such circumstances should not be questioned. Such compelling facts do not appear in this case. Testimony that Mrs. Arnold was not present in the ‘Depot Rooms' on November 13th and 14th would be cumulative, as were all of the other facts stated in the affidavits, i.e., no new substantive evidence would have been presented, the matter merely being for impeachment or corroboration. Mrs. Gianquento testified at least that she worked on and off; that Mrs. Pesce was there on November 13, 1940 and that she left on the morning of the 14th, which corroborates Mrs. Pesce's testimony. Neither Mrs. Marzi, the sister, nor Mrs. Gianquento, the sister-in-law, who testified for the defense of Manchetti, mention the presence of Rita Gomez in or near the place during the month of November, 1940, and in none of the affidavits is there any statement that Mrs. Pesce was not at the house during any portion of the month of November and no statement that she was not there on November 13th and part of the 14th.

One of the affidavits relates positively that witness Edwards was not in a nearby house on November 13 and 14, 1940. The trial judge as a thirteenth juror could have determined that the evidence of Edwards was ‘hazy’ and unreliable and that any effort to contradict his statements would be unnecessary and a waste of time. In view of the inconsistent statements in the several affidavits the trial judge may have determined that they were not worthy of belief, including the reference to the claim that Mrs. Pesce sought to have Mrs. Gomez deny that she occupied the premises in the early part of November, 1940.

A broad discretion rests with the trial court in denying a new trial on the grounds of newly discovered evidence. Unless an abuse of discretion appears, the trial court should be upheld when it appears that an injustice has not been perpetrated.

The judgment and order denying a new trial are affirmed.

I dissent.

In my opinion the record demonstrates to a certainty that this defendant was not accorded a fair trial.

This is not a case where the evidence points unerringly to the guilt of the defendant. The case was very close on its facts. The story told by the prosecution witnesses while not impossible was, to say the least, highly improbable. Most of the witnesses were either operators, inmates or workers in houses of prostitution. The complaining witness, admittedly a brothel operator, had lived with defendant for long periods of time. After the events supposed to have occurred on November 13 and 14, 1940, she took a two-month automobile trip with defendant. She testified that he kidnapped her and removed her from this jurisdiction so that she could not testify against him, and that during the entire two months she was his prisoner. No complaint was made to any one during this period, however. She testified that for years defendant had beaten and threatened her and extorted large sums of money from her. The prosecuting officials, however, did not see fit to charge defendant with these other crimes, and, in fact, voluntarily dismissed a kidnapping count in the indictment based on the events of November 14, 1940. If the story told by the prosecution witnesses is true, the defendant is a bad man indeed, and should be incarcerated. However, the testimony of the complaining witness and of the other prosecution witnesses, does not stand uncontradicted. The sister and sister-in-law of the complaining witness directly contradicted her, and also testified that the reason for the prosecution was that defendant had spurned the affections of the complaining witness. Melodramatic threats were testified to on both sides. Feeling ran high during the trial. Not only did sister contradict sister, but the husband of a defense witness directly contradicted his wife. A fight broke out among the witnesses during the trial. If the stories told by the defense witnesses are true, the defendant is innocent of the crime charged, and the prosecution witnesses are guilty of perjury. After reading the entire record I cannot say where the truth may lie. Certainly the evidence fails to clearly establish either the guilt or the innocence of the accused. It is, of course, true that these conflicts were for the jury, and that the jury has found in favor of the prosecution. This court has no power to weigh the evidence. But it is proper to emphasize the fact that the case was very close on its facts, and to point out that there was abundant evidence, which, if believed, would support a finding of innocence. This is so because the closeness of the case on the evidence is the vital factor that determines that the errors hereafter pointed out were prejudicial. It is quite obvious that what might not be a prejudicial error in one case where the evidence is overwhelming on behalf of the prosecution, may well be prejudicial in another case where the evidence is close.

Another generalization is here pertinent. In determining whether a defendant has been accorded his constitutional right to a fair trial the case as a whole must be considered. The weakness of the majority opinion is that it considers each claimed error as if it were a separate and distinct problem, and fails to appreciate that all of the claimed major errors are interrelated. They are all the result of forcing this defendant to trial with a lawyer who was not only unprepared but was not selected or desired by the defendant. When the problem is considered in this light I believe that there can be no doubt at all that defendant was not accorded a fair trial, and that the interests of justice would best be served by granting him a new trial.

The majority opinion contains a reasonably complete statement of facts. Certain dates and facts, however, should be emphasized. The crime charged in the indictment is alleged to have occurred on November 13 and 14, 1940. Apparently no complaint was made to the local police for many months, although the complaining witness did testify that she reported the facts to the parole board. This was not corroborated. At any rate, the indictment was not returned until December of 1941. Defendant was not arraigned until June 2, 1944, and not brought to trial until May 24, 1945. During the period June 2, 1944, to May 24, 1945, some fourteen continuances were had, one from June 2, 1944, to June 9, 1944, at the request of defendant, the others by consent, by order of court, or by request of the prosecution. The record also shows that on April 24, 1945, the cause came on for trial. On that date by order of court it was continued to May 23, 1945. The record shows that the defense was ready to go to trial in April, but that the case was continued until May 23d. On May 21st defense counsel and a deputy district attorney appeared before a trial judge other than the judge that ultimately tried this case. It appears that Mr. Coghlan, the defense counsel, had phoned the district attorney on the 19th and informed him that he, Coghlan, would be engaged in a trial in San Mateo County on May 23d, and requested a short continuance. The deputy district attorney that appeared on May 21st was not the deputy that tried the cause. The deputy objected to a continuance on the sole ground that the prosecution had foreign witnesses present in San Francisco and ready to testify. The trial judge then presiding suggested that the lawyers try to secure a continuance of the San Mateo case which had been set for May 23d. The judge suggested that the deputy district attorney telephone to the San Mateo judge and explain the facts and request a continuance of the San Mateo case. He authorized counsel to use his name in the negotiations. On May 23d, which was a Wednesday, the deputy district attorney pointed out that because of the condition of the trial court's calendar the case could not proceed to trial that day but would have to be continued one day. He also admitted that since May 19th he had known that Mr. Coghlan was to be engaged in the San Mateo trial and that on May 23d Coghlan was so engaged, but he insisted that, because he had subpoenaed out-of-state and Los Angeles witnesses, the cause go to trial the next day. The defendant was unrepresented by counsel at this hearing and the court ordered the defendant to get busy and have Mr. Coghlan or some one else there the next day. On May 24th, Thursday, Mr. Andrews appeared for Coghlan and requested a continuance on the ground that Coghlan was then engaged in the San Mateo trial, and represented that any day the next week would be agreeable to Coghlan. Andrews told the court that he knew nothing about the case, had not consulted with the defendant, and in fact only knew what the charges were in a most general way. The deputy district attorney opposed the motion on the ground that the prosecution had witnesses ready from Los Angeles. The trial judge denied the motion. Andrews vigorously protested on the ground that he had not even consulted with defendant and was totally unprepared. The court announced that they would immediately proceed to select a jury and that then it would grant a continuance to permit Andrews to familiarize himself with the facts. The defendant attempted to address the court on the question but was summarily told to sit down. A jury was then selected, the record showing that but fifteen prospective jurors were interrogated, one being excused by stipulation, and one each by challenge by the prosecution and defense. Andrews requested a continuance until noon of the next day, but the trial court ordered him to trial on May 25th at 10 a. m. The next morning Andrews again objected to proceeding and suggested that the defendant should be represented by the public defender. The trial court denied this suggestion. The defendant pointed out that Coghlan could be there the next day but the court insisted on going to trial at once. This is the first error of which complaint is made.

This claimed error cannot be considered, however, separate from the second main error that occurred immediately afterwards. The very first witness called by the prosecution was David T. Edwards. This witness positively places the defendant on the premises in question on November 13, 1940. He positively identified defendant. He puts a gun in defendant's hands and puts threats in defendant's mouth. While his testimony as to who had the gun and who said what is somewhat confused, his identification of defendant, his testimony that Edna Arnold was then on the premises (a point challenged by many defense witnesses), and his testimony as to the date, were clear and unconfused. His direct examination covers some eight pages of transcript. On cross-examination, covering but several pages, Andrews, who had just secured the Grand Jury record that morning, was able to bring out that before the Grand Jury the witness had testified that the codefendant had the gun and not Manchetti. The witness became quite confused on this issue. But as to the vital issues of identification, of the date, of the existence of a gun by one of the defendants, of the making of threats, etc., Andrews had no real opportunity to cross-examine because it soon developed that the witness was ill in that he was then a shell-shocked war veteran then undergoing treatment for his shattered nerves. When the witness became confused as to who had the gun he asked to be excused. Andrews stated that he had no objection. Obviously what Andrews meant was that he had no objection to the witness stepping down from the stand—not that he acquiesced in this witness being excused completely. This is demonstrated by the colloquy between court and counsel. The court then excused the witness.

Of course, Andrews should have specifically requested that the witness be excused subject to being recalled. The was not done, but fairly construed that is what was then intended.

The trial continued. Various witnesses were called by the prosecution. As to all of the major witnesses called on the 25th Andrews' inability to cross-examine because of his lack of preparation was so clear that the court permitted him to reserve his cross-examination. This was on Friday. The trial was then recessed until Monday, May, 28th. On Monday, Coghlan was present and substituted in the place of Andrews. Then because the trial judge had a cold, a three-day continuance was granted for the convenience of the court.

Thereafter, as the prosecution's case developed the testimony of the soldier Edwards began to take on increasing importance. Every one of the prosecution's witnesses that testified as to the facts of the actual crime, with the exception of Edwards, was connected in some way with the operation of brothels. Coghlan knew, of course, that several of his major witnesses were of the same type. Here was Edwards, a soldier, who had no connection with any of these witnesses. He was the only impartial witness called by either side on the basic question of whether a crime had been committed. His testimony was so important to the prosecution that in both his opening and closing arguments to the jury the prosecuting attorney referred to it in detail. The majority opinion recognizes the importance of Edwards' testimony. On page one [169 P.2d 940] it is pointed out that the story told by the prosecuting witness ‘may seem improbable,’ and then it is stated that this improbable story was supported by the testimony of Edwards. The Edwards' testimony is then bolstered by a reference to Edwards' testimony before the Grand Jury—testimony which was, of course, not then subject to cross-examination.

Before the defense put in their case Coghlan moved to have Edwards recalled for further cross-examination and when this was denied he moved that his testimony be stricken. This motion was taken under consideration and subsequently denied.

The majority opinion considers each of these matters separately and determines that the granting of the continuance and the refusal to recall Edwards or to strike his testimony were within the discretion of the trial court. I agree that the trial court has wide powers of discretion in these matters, but it must be remembered that even where discretion is conferred a trial court's power are not unlimited or uncontrolled. The discretion is not a discretion to act pursuant to mere whim or caprice, but a judicial discretion—a sound discretion governed by reason and law. When this record is read as a whole it must be held that the trial court abused its discretion in refusing the continuance and in refusing to recall Edwards or to strike his testimony.

Consider, indeed, the plight of defendant. He had retained counsel of his own choice. That lawyer was thoroughly familiar with the entire case, including the major testimony that was to be produced by the prosecution as well as by the defense. He had been counsel for defendant even prior to the date the indictment was returned. A month before May 23d he told the court that he could not proceed on that date. The defense was ready to proceed in April but either for the convenience of the court or the prosecution the case was continued. On May 19th counsel informed the deputy district attorney that he could not proceed on the 23d because of a prior commitment in San Mateo. Then on the 21st counsel formally informed the court of his predicament. The trial judge suggested that an attempt be made to secure a continuance of the San Mateo case. That attempt failed. On the 21st and again on May 23d, the deputy district attorney objected to a continuance solely because he had out-of-state and Los Angeles witnesses in San Francisco ready to testify. The deputy obviously was in error because no such witnesses were called, and nowhere in the record or briefs is there any explanation of this apparent misrepresentation. On the 23d the trial court had no objection to granting a continuance until the 24th to suit its convenience, and on the 28th it took a three-day continuance because the judge had a cold. On the 23d the defendant found himself completely unrepresented. On the 24th Andrews appeared not to represent the defendant, but on behalf of Coghlan to request a continuance of two trial days. At that time Andrews had not consulted with the defendant, had not read the Grand Jury testimony and was totally unfamiliar with the case. Nevertheless, the court in effect appointed Andrews to represent the defendant, and when the defendant attempted to express himself he was told to sit down. The trial court then compelled Andrews to select a jury without even giving him an opportunity to consult with his client. The majority opinion holds that this was not error because the voir dire examination of the jurors does not appear in the record. This is an unrealistic approach to the problem. The selection of a jury is not an abstract problem. The questions asked of prospective jurors must turn on the facts of the case. All that Andrews then knew was that defendant was charged with robbery. He had not then read the Grand Jury record, and had not then had the opportunity to consult with his client. He, if course, did not know the nature of the prosecution's case nor the type of witness upon which the prosecution was to rely. He had no idea of the nature of the defense that he was to make. Under such circumstances how could any attorney, regardless of competence, intelligently interrogate prospective jurors? How could he ascertain whether the prospective jurors would be prejudiced against his client, when he then did not know the facts upon which such prejudice might exist? An attorney would have to be omnipotent as well as omniscient to select intelligently a jury under such circumstances. To force an attorney to select a jury without any real knowledge of his case is an obvious infringement of the right of the defendant to a fair trial.

And then what happened? Edwards was called as the first prosecution witness. He testified that he saw defendant on the premises on November 13, 1940; that he saw Edna Arnold there; that defendant had a gun in his hand; that defendant made demands for money and uttered threats as to what would happen if he did not get it. The testimony of this witness alone proved every element of the offense except the actual securing of the money. Then Andrews started to cross-examine. He started to interrogate the witness as to whether Manchetti or his codefendant had the gun or made the threats, and the witness became confused, and asked to be excused. At that point, however, no cross-examination of any substantial character was had as to whether defendant was in fact there, whether Edna Arnold was in fact there, and whether a gun was in fact used or threats uttered by one of the parties. Andrews acquiesced in the witness being excused and a moment later stated to the court that the witness wanted ‘to step down from the stand.’ A few days later when Coghlan had been substituted he moved to recall the witness. This was denied, the court apparently feeling that the witness was too upset or too ill to be recalled. Coghlan moved to strike his testimony. The majority opinion seems to hold that Coghlan's motion was based on the point that the witness had demonstrated that he was unable to recall the facts. The majority opinion quite properly holds that Edwards' credibility was for the jury. What the majority opinion does not clearly disclose is that the motion was likewise based on the point that unless the witness were recalled the defendant was deprived of his right of cross-examination. It is the denial of the motion on this ground that constitutes the prejudicial error.

It hardly needs citation of authority to establish the principle that a defendant in a criminal trial is entitled to be confronted with the witnesses against him, and has the legal right to cross-examine such witnesses. Such rights are an inherent part of due process. It is, of course, the law that when a witness has been cross-examined and excused, whether he shall be recalled for further cross-examination rests in the discretion of the trial court. But it must be remembered that the trial judge is not sitting there as an impartial umpire passing on a game of skill. A trial is not a game where victory or defeat depends solely upon whether all of the technical rules have been followed. The trial judge is duty bound to see to it that the defendant receives a fair and impartial trial. Here the trial court had denied a continuance and forced defendant to trial with an attorney not of his own choice and one who was admittedly unprepared. A defendant has the constitutional right ‘to appear and defend, in person and with counsel’. Art. 1, § 13, of Constitution. The legal principles involved have frequently been stated by the courts. See People v. Lanigan, 22 Cal.2d 569, 140 P.2d 24, 148 A.L.R. 176; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527—so unsuccessfully attempted to be distinguished in the majority opinion. The case of In re Egan, 24 Cal.2d 323, 149 P.2d 693, so strongly relied upon by the majority, has no application at all to the problem here involved. That was an attempt to attack collaterally a ten-year-old final judgment by habeas corpus. In such a proceeding prejudice must be clearly demonstrated. None appearing, the writ was denied. In our case prejudice is obvious.

So far as the continuance is concerned, it must, of course, be conceded that no lawyer is entitled as of right to a continuance just because he has so many cases that it is inconvenient to appear on a certain day. Court calendars could not be maintained if that were the rule. But in ruling on such a motion the court must not only consider its convenience and that of the prosecution but also the rights of the defendant. The court possesses full powers to punish attorneys by contempt, or otherwise, when they fail to appear to defend their clients. But in penalizing the attorney the courts should not penalize the client who is in no way at fault. Here there had been fourteen continuances covering a period of nearly a year. All but one had been granted by consent, by order or upon request of the prosecution. A month before May 23d the court was informed that it was doubtful if counsel could appear on that date. On May 19th the prosecution was so informed, and on May 21st the full facts were disclosed. Even then the court did not absolutely deny the request but suggested that counsel and the deputy district attorney seek a continuance of the San Mateo case because out-of-state witnesses and Los Angeles witnesses were present in San Francisco to testify. These negotiations failed. Until the morning of May 23d it was reasonably apparent that unless the San Mateo case could be continued, the San Francisco case could not proceed. On that date the court continued the case for one day because it was otherwise occupied. On the 24th the sole ground upon which the prosecution objected to the continuance was that it had these out-of-state and Los Angeles witnesses ready to testify. That was an important factor in determining whether to grant the request. But no such witnesses were called. No explanation of this apparent misrepresentation appears. The trial court acted on that apparent misconception. It then forced defendant to accept Andrews as his counsel and forced Andrews to select the jury without any preparation at all. It seems to me that this was prejudicial error. But whatever doubt may exist as to whether such error was prejudicial is completely set at rest by the court's failure to recall Edwards or to strike his testimony. While Andrews should have formally moved to reserve his right to cross-examination, it seems to me that this was done by implication. But even if this was not done, and if the recalling of the witness rested in the discretion of the court, it was an abuse of discretion, as a matter of law, to deny the request. The court then knew that Andrews was unprepared to try the case. It then knew that Edwards' testimony was of fundamental importance to the prosecution. It then knew that every prosecution witness who testified as to the actual crime was a person of questionable character. It then knew that Edwards, this shell-shocked veteran of this war, was the only prosecution witness not of questionable character who placed the defendant at the scene of the crime. It then knew that Andrews had not had the opportunity to cross-examine on the basic questions as to whether Edna Arnold was there, whether defendant was there, etc. To deny the right to recall the witness or to strike his testimony under these circumstances was clearly an abuse of discretion, and resulted in denying to defendant that fair and impartial trial guaranteed to him by our state and federal Constitutions.

The defendant may be a bad man. He may be guilty. But as bad as he is, or as guilty as he may be, he is entitled to a fair trial. The maxim that the end justifies the means has no place in our criminal law. If the criminal processes may be abused to convict a bad or a guilty man, they could be abused to convict an innocent one. It is the proper function of an apppellate court to be ever alert to see to it that the fundamental rights of one accused of crime are not infringed. In no other way can our democracy be preserved.

In my opinion the judgment and order appealed from should be reversed.

WARD, Justice.

KNIGHT, J., concurs.