People v. Calvert

• Decision Date: 21 December 1954
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John J. CALVERT, Defendant, National Automobile and Casualty Insurance Company, a corporation, Appellant. Civ. 20448.

Page 834

277 P.2d 834

129 Cal.App.2d 693

The PEOPLE of the State of California, Plaintiff and Respondent, v. John J. CALVERT, Defendant National Automobile and Casualty Insurance Company, a corporation, Appellant.

Civ. 20448.

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

Dec. 21, 1954.

Joseph T. Forno, Harold J. Ackerman, Los Angeles, for appellant.

Joseph T. Forno, Los Angeles, for defendant Calvert.

Harold W. Kennedy, County Counsel, John Powers Wright, Deputy County Counsel, Los Angeles, for plaintiff and respondent.

WHITE, Presiding Justice.

An information had been filed against the above named defendant and undertaking of bail in the amount of $10,000 was filed by appellant National Automobile and Casualty Insurance Company, a corporation. When the cause was called for trial on January 15, 1954, the defendant failed to appear. His counsel moved for a continuance and in support of such motion presented an affidavit from defendant's physician, Dr. Joseph Green, dated January 13, 1954, and reading as follows:

'This is to certify that I have examined Mr. John Calvert this afternoon, at his home, and found him to have an incarcerated right direct and indirect inguinal hernia. At the present time, this is not completely strangulated, but is quite tender and cannot be replaced with compression.

'The patient is now confined to bed under heavy sedation, with the foot of the bed elevated, and compresses applied to the incarcerated hernia, in an attempt to replace the hernia into the abdomen. If at the end of one week it does not drop back into the abdomen, and becomes strangulated completely; he will require hospitalization and surgery; and he will be confined for at least one month.'

Thereupon, the court made an order that 'by reason of the physical condition of the defendant, cause is continued to February 18, 1954 at 9 a. m. for trial'.

Later the same day (January 15, 1954) according to the record the trial judge 'received information which caused me to doubt the inability of the defendant to be present at the trial'. An order was thereupon made 'That Doctor Marcus Crahan is appointed by the Court under Section 1871 C.C.P. to visit and examine the defendant as to his physical ability to attend court and report his findings to the Court'. At the same time a bench warrant was issued by the court with instructions to the sheriff and Dr. Crahan as follows: 'that if the defendant was capable of being transported to the county jail with safety after being taken into custody with a bench warrant, that that should be done; but that if his physical condition would not permit that the bench warrant should not be served.'

On January 15, 1954, fortified with the foregoing bench warrant and instructions Dr. Crahan, accompanied by two police officers of the Los Angeles Police Department, went to the home of defendant in the city of Long Beach, arriving there about 3:30 p. m., where they found the defendant in bed attired in bed clothes and lying prone.

Following his examination of defendant, Dr. Crahan reported to the court as follows: 'His alleged incapacity was a partially strangulated right inguinal hernia. He denied other medical complaints. Examination of the area involved revealed a large (4-inch diameter) soft pliable mass in the right inguinal region, relatively non-tender, non-indurated and readily reduced by light manipulation. Strangulation in this type of hernia is highly improbable.

'The defendant was felt to be physically capable of appearing for trial on January 18, 1954 and Sergeants Barrick and Horne of the Los Angeles Police Department were so advised.'

Following the examination, Dr. Crahan offered defendant the services of an ambulance for transportation to the county jail but according to the physician, defendant declined ambulance service and volunteered to go in the police car. It is however noteworthy that on arrival at the county jail Dr. Crahan ordered the usual 'booking' procedures, which it is asserted, ordinarily consume from five to twelve hours, dispensed with and directed that the defendant be immediately placed in the hospital ward of the county jail where he was confined until the morning of January 18, 1954, when the cause was called for further proceedings. At this time defendant was returned to court by the sheriff and his counsel was present. The court thereupon ordered a forfeiture of the bail bond theretofore posted by appellant, bail was fixed in the sum of $25,000 and the cause ordered on calendar January 19, 1954 for resetting. At this time the court appointed Dr. Walter Dodge, pursuant to Secton 1871 of the Code of Civil Procedure, to examine defendant and report his findings to the court.

On the following day (January 19, 1954) Dr. Dodge examined defendant and under the caption of 'Comment' epitomized his report as follows: 'From the history given and from the results of my examination, I believe that this man is in good health. I found no evidence of any strangulation of his hernia and, from the history as related to me, I greatly doubt that on the dates he mentioned, namely four weeks ago and one week ago, that he had any strangulation of his hernia. This opinion is based principally on his statement that on each of these occasions the hernia was very easily reducible and that he reduced it himself. This is not the history of a strangulated hernia.

'His hernia, while of good size, is not apparently disabling as he informed me that he has been playing golf very regularly up until a short time ago.

'This man is physically able to attend court at this time. He has been getting about in a normal manner, has been quite active and with no complaints. He probably would be more comfortable with a properly fitting truss and at some future time a surgical repair of his hernia should be done.'

On April 16, 1954, appellant Surety Company appeared in court by its counsel and defendant personally appeared with his attorney. Both made motions to vacate the order of forfeiture entered on January 18, 1954 and to exonerate the bail bond. Pursuant to the provisions of Section 1305 of the Penal Code, appellant surety company filed its affidavit of non-collusion, and in support of his motion, defendant filed a supporting affidavit. The court received as an exhibit eight volumes of daily transcript of the testimony given in the case of People v. Calvert and Green (No. 162238) then on trial in another department of the court, and which will hereinafter be referred to. The motion of appellant surety company to set aside the order of forfeiture and exonerate its bond was denied. From such order this appeal is prosecuted.

With regard to the case of People v. Calvert and Green, above referred to, it appears that following the order forfeiting the aforesaid bail...