People v. Bealoba

         Three assignments of error are made by appellant's counsel.

         I. That a part of the trial took place in the absence of the defendant. It does not appear from the record how long, at what time, or under what circumstances the defendant was absent. Error, therefore, is not made manifest. There are some circumstances under which an absence might be error, and some under which it would not. It is unnecessary, however, to discuss this point, as an examination of the whole record developes the fact that the absence spoken of was at the time the order was entered fixing the day for sentence. This is not error. (People v. Galvin , 9 Cal. 115.)

         It appears that the Court, in the absence of the defendant, fixed the time of judgment, etc. But the record shows affirmatively that at every other stage of the proceedings the defendant was present in person and by counsel.

         II. That the Court erred in admitting certain testimony, and afterwards excluding it from the jury.

         This was assigned as a ground for new trial, under the head of " accident or surprise, which ordinary prudence could not have guarded against." And the refusal to grant said new trial upon said ground is claimed as cause for reversal.

         The counsel mistook the civil for the criminal practice in the Courts of this State. The District Court had no power to grant a new trial on the ground assigned; on the contrary, it was expressly forbid doing so. (Wood's Dig. 304, art. 1679.)

         If the Court below had no power to grant a new trial upon the ground assigned, this Court will not consider the merits of the question upon the facts. But waiving the answer just made, there is another which is conclusive. There could have been no surprise (in law) on account of the exclusion of incompetent testimony. It could only follow the exclusion of evidence upon the ground of the incompetency of the witness. The latter, if excluded in time, might be supplied by the introduction of another witness, whilst the former could not. The fact that the testimony now under consideration was incompetent, is notdenied; and it is also admitted that all other witnesses proposed for the purpose of giving the same evidence might have been excluded. But we are told that the same result could have been attained by the introduction of other witnesses, whose testimony would have been unobjectionable. Admit this, and yet the defendant has no just cause of complaint. Ordinary prudence would have guarded against the surprise by the introduction of the strongest evidence to the point in existence, and would not have relied upon that which was weak and liable to be excluded.

         It is not stated who this witness was, or whether he was competent or reliable. No opportunity, therefore, is afforded the prosecution to contradict or disprove the statement. Nor does the affidavit of said witness, setting forth that he would swear as alleged, accompany the statement as it should.

         III. The Court did not err in its charge to the jury in defining the acts which amount to murder in the first degree. (Commonwealth v. Green, 1 Ashmead, Penn., 296-300; Commonwealth v. Murray , 2 Id. 43; Commonwealth v. Keeper of the Prison, Id. 231; 1 Leigh, 667-671; 1 Meigs, 276, 277, and authorities; State v. Dunn , 18 Miss. 424; State v. Jennings, Id. 443; People v. Moore , 8 Cal. 90.)

         JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring.

         OPINION

          BALDWIN, Judge

         On petition for rehearing, Baldwin, J. delivered the opinion of the Court--Cope, J. concurring.

         Rehearing denied. The statute (Cr. Pr. Act, sec. 320) does not say that the trial must necessarily be had, during its whole progress, and in every part of it, in the presence of the defendant. The words are: " If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant; but if for a felony, he must be personally present." We must presume in favor of the regularity of the action of the inferior Court. No statement of facts in connection with this subject is made. The bare fact is noted that the defendant was absent during a portion of the trial. This loose statement, which the Judge should not have made except in connection with the real facts illustrating and explaining it, is all that the record gives us upon this subject. This fact does not necessarily show error injurious to the party, or any error at all. We showed in the opinion that various allowable causes might exist for the momentary absence of the prisoner; and we are to presume from the fact that the prisoner has not explained the facts connected with this statement, that his absence, as stated, was one of these. We are not aware that we have ever decided anything which contravenes the rule now held; and if we had, in this class of cases we should not hesitate to overrule the decision, for upon a mere technical question of imputed irregularity in the trial or conduct of a cause, whenever the fact, as stated, may be consistent with the duty of the Court, we think that we should hold that the Court acted properly, when nothing is shown which goes to establish a contrary theory.