People v. Hollander

• Decision Date: 28 July 1961
• Docket Number: Cr. 7589
• Citation: 14 Cal.Rptr. 917,194 Cal.App.2d 386
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Herman HOLLANDER, Defendant and Appellant.

Page 917

14 Cal.Rptr. 917

194 Cal.App.2d 386

PEOPLE of the State of California, Plaintiff and Respondent, v. Herman HOLLANDER, Defendant and Appellant.

Cr. 7589.

District Court of Appeal, Second District, Division 3, California.

July 28, 1961.

Hearing Denied Sept. 20, 1961.

W. P. Butcher, Santa Barbara, under appointment by the District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty.Gen., and Jack K. Weber, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

By information defendant was accused in count I of forging and uttering a check for $87.14, and in count II of forging and uttering a check for $78.14. A jury found him guilty as charged. A new trial was denied. Defendant was sentenced to state prison. He appeals from the judgment.

There was evidence on behalf of the prosecution of these facts: Bill Beckwith was the owner of a ranch in Ventura County. Defendant and one Charles Gardner resided on the ranch and were acquaintances. Gardner broke into Beckwith's residence and stole, among other things, a check protectograph and some blank checks. Following the burglary, Gardner and defendant drove to the home of Gardner's brother in Lompoc, Santa Barbara County, taking the protectograph, the checks, and a typewriter with them. On arrival, using the protectograph, defendant, Gardner, and Gardner's brother filled in the blanks in the two checks in question. Defendant signed the name 'Bill Beckwith' to the checks. Gardner cashed the $87.14 check at a liquor store in Lompoc in defendant's presence. Defendant cashed the $78.14 check at another liquor store in Lompoc in Gardner's presence. Defendant was wearing levis on each occasion.

Charles Gardner testified on behalf of defendant that he stole the protectograph and checks; defendant had nothing to do with the burglary and did not know anything about it at any time; he committed it alone; he hid the stolen items at a ranch in Santa Paula where he was living; a week later he put them in his car and went to his brother's home in Lompoc with defendant who was living on the same ranch; defendant was working as a car salesman at the time; he did not know how to spell 'Bill Beckwith'; the next day he asked defendant how to spell 'Beckwith'; defendant, at his request, wrote it on a piece of paper and handed it to him; he then handed defendant an envelope and asked him to write Beckwith's name and address on it; he wanted to use defendant's writing of Beckwith's name as a means of forging Beckwith's name by tracing it on the checks; as the reason for having defendant write Beckwith's name and address, he told defendant he had worked for Beckwith, Beckwith owed him money, and he was going to write to him and tell him where to send it; he put the piece of paper and the envelope in his pocket; later that day he took the piece of paper and the envelope out to his car; he was alone; he then put the two checks against the writing and traced the signature 'Bill Beckwith' on them; prior to that time he had typewritten the name of the payee and the amount on each check, and with the protectograph had stamped the amount and the name 'Beckwith Ranch' on them; defendant had nothing whatsoever to do with writing the checks other than innocently furnishing his with a sample of Mr. Beckwith's handwriting which he wrote without the knowledge that he was going to use them to forge Mr. Beckwith's name; he endorsed and cashed the checks; he was alone when he cashed the $78.14 check; after cashing that check, he drove back to his brother's house and picked up defendant; he drove to the store where he cashed the $87.14 check; defendant remained in the car; after he had cashed the check and had the money in his pocket, defendant came into the store; defendant had on a pair of slacks, a brown shirt, and a jacket; he was not wearing blue jeans or overalls; he and defendant lived together and were 'pretty' good friends; he had previously been convicted of robbery and had pleaded guilty to the Beckwith burglary; he was imprisoned in Vacaville.

K. O. Johnson, sales manager of a Chevrolet agency in Santa Paula, testified he employed defendant as a salesman and defendant worked two to three weeks. The dates defendant worked were not developed. He received one commission.

Curtis Gardner, brother of Charles Gardner, testified that on the day after Charles and defendant arrived at his home Charles asked him for some writing paper and envelopes, saying he wanted to write a letter to the man he worked for, to have him send his money to him in Lompoc; he obtained the paper and envelope for his brother; defendant did not have blue jeans on that day. No levis were found by the police.

Defendant did not testify.

On September 19, 1960 defendant had appeared for arraignment. The minutes reflect this finding: 'It appearing to the Court that the defendant does not have sufficient means with which to employ counsel, W. P. Butcher is hereby appointed to aid the defendant in said cause.' On September 26 Mr. Butcher was relieved. On October 3 defendant, in propria persona, was arraigned, pleaded not guilty, and trial was set for October 25, 1960. The cause was tried before the Honorable C. Douglas Smith and a jury. Defendant represented himself. The jury disagreed.

After the trial and disagreement of the jury, the cause came on for resetting on November 1, 1960 before Judge Smith. Defendant, appearing in propria persona, requested the court to order a transcript of the prior trial. The request was denied and retrial was set for December 6, 1960. The request for a copy of the transcript of the prior trial was renewed on November 21 and denied.

On November 30, 1960 defendant caused subpoenas to be issued and delivered to the sheriff for the judge who presided at the prior trial and for the jurors who had served at that trial. When the cause came on for retrial on December 6 before Judge Smith, defendant appearing in propria persona, the court on its own motion quashed defendant's request for the issuance of the subpoenas. Apparently the sheriff had served some of them on December 1 and on December 5. Defendant then filed an affidavit of prejudice against Judge Smith and the cause was transferred to another department, the Honorable Ernest D. Wagner presiding.

On December 6 before Judge Wagner, after a jury had been impaneled, defendant, appearing without counsel, again requested the court to order a copy of the reporter's transcript of the prior trial, stating there were many discrepancies between the testimony of the People's witnesses at the prior trial and at the preliminary hearing. The request was denied. The following then occurred: 'Mr. Hollander: And I ask the Court to reconsider my subpoena rights on my other witnesses. The Court: Well, Judge Smith has ruled upon those matters already, Mr. Hollander. Let me say this to you--if it develops that you need a witness who can testify as to a material matter here, I will see that he is produced if we are able to produce him or her, but we simply can not go out and subpoena an innumerable number of people simply because you want them. You must make a showing as to the materiality of their testimony. The same thing applies to the People.'

The first assignment of error is the defendant was denied his constitutional right 'to have the process of the court to compel the attendance of witnesses in his behalf.' Const. art. I, § 13.

It does not appear that Judge Smith abused his discretion in quashing defendant's request for the issuance of the subpoenas. The apparent purpose of subpoenaing the judge who presided at the prior trial and the jurors who served in that trial was to impeach the People's witnesses if their testimony was inconsistent with the testimony they gave at that trial. There was no showing that any one of the witnesses subpoenaed would have impeached any of the People's witnesses.

The second assignment of error was the refusal of both Judge Smith and Judge Wagner to order a copy of the reporter's transcript of the first trial for use by defendant and the denial by Judge Wagner of a reasonable continuance in which to have the transcript prepared.

As previously stated, on November 1, 1960 defendant requested Judge Smith for an order directing that the transcript be prepared. The request was denied. On November 21 the request was renewed and denied. The cause came on for the second trial on December 6, 1960, defendant appearing in propria persona. Defendant then requested Judge Wagner for the same order. The request was denied. Judge Wagner stated: 'I am without any jurisdiction to order a transcript prepared so it will have to be denied.' The trial proceeded. On December 7, because of illness of a juror, further trial was continued to December 13, at which time trial proceeded and defendant again 'moved the Court for a copy of the transcript of the record of the former trial.' The motion was again denied.

After the People had rested on December 13 defendant made a statement to the jury, called and examined two witnesses, Mr. K. O. Johnson and W. P.Butcher, an attorney at law. The record reflects the following then took place: 'The defendant then moved the Court to reappoint W. Preston Butcher previously appointed by the Court, and refused by the defendant, to represent him as counsel in this trial. Said motion was granted. The defendant, through his counsel then moved for a continuance, and to have the Reporter's Transcript of the present and previous trials prepared and furnished to him at Court expense. Said motion was denied. * * * [The jury was excused until December 14.] The Court then read its notes of the present trial and the Reporter read his notes of the trial to the defendant and his Counsel. The Court then allowed the Counsel for the Defendant to take its notes of the trial for study until Court convened the next day.' In the course of this proceeding Judge Wagner said that if...