People v. Leeper, Cr. 2369

• Decision Date: 28 April 1953
• Docket Number: Cr. 2369
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. LEEPER.

Page 389

256 P.2d 389

117 Cal.App.2d 462

PEOPLE v. LEEPER.

Cr. 2369.

District Court of Appeal, Third District, California.

April 28, 1953.

E. R. Vaughn, Sacramento, for appellant.

Edmund G. Brown, Atty. Gen., Gail A. Strader, Deputy Atty. Gen., for respondent.

VAN DYKE, Presiding Justice.

The grand jury of Yolo County found an indictment against appellant and three codefendants, Louise E. Mecum, Bert Yost and Edward R. Greene. Count I of the indictment charged conspiracy to commit grand theft in that the defendants during the period between August, 1948, and October, 1950, conspired to obtain property and money of the estate of one Frank Weber by making false and fraudulent representations and making, uttering, publishing and passing as true and genuine a certain false and counterfeit document, to wit, a carbon copy of an alleged executed will. Count II charged the crime of perjury alleged to have been committed by the several defendants on varying dates in that they gave certain false testimony. All of the defendants pleaded not guilty to all charges. The case was called for trial on January 15, 1952. Defendant Greene not appearing his bail was forfeited and a bench warrant issued for his arrest. Before the voir dire examination of jurors began, John C. Harris, Esq., who had been acting as counsel for Leeper and Mecum, was, at his request, relieved of his representation of Mecum and the public defender was appointed to represent her. Thereupon, with leave of court, she withdrew her plea of not guilty to the charge of perjury and pleaded guilty thereto. The count charging conspiracy was dismissed as to her. Prior to trial defendant Yost had withdrawn his plea of not guilty and entered a plea of guilty as to a charge of perjury and as to him also the conspiracy charge had been dismissed. Both Mecum and Yost testified for the prosecution during the trial which went forward as to appellant Leeper alone. After a trial consuming ten days, the jury returned verdicts of guilty against appellant on both counts of the indictment. Motion for new trial was made and denied and the court sentenced appellant to serve consecutive terms as to each conviction. This appeal followed.

Appellant assigns the following errors: (1) That he was not accorded a fair and an impartial trial; (2) That the evidence of the accomplices Mecum and Yost was not corroborated; (3) That the conspiracy was not established by competent evidence; and, (4) That the perjury was not proved by required evidence.

In support of his assignment that his trial was unfair, appellant urges that when his case was called for trial, and throughout the trial, he was too ill to be tried; and that, though himself an attorney, he was compelled to go through the trial without the assistance of competent counsel. In factual support he shows the following: The record discloses that appellant moved the court for a continuance upon the ground of his illness, which motion was denied; that he moved for a change of venue, which was denied; that when it appeared at the beginning of the trial that defendant Greene would not be present, appellant moved for a continuance upon that ground, which motion was denied; that when Greene did not appear the court in the presence of the panel ordered his bail forfeited and that a bench warrant issue for his arrest, whereupon appellant again moved for a change of venue, which motion was denied; that on the second day of the trial appellant again renewed his motion for a continuance on the ground of his illness, which motion was denied, the court stating it found the supporting affidavit of an urologist insufficient, whereupon appellant asked that he be examined by a local physician skilled in urology, and that he be granted continuance sufficient to subpoena the affiant urologist whose affidavit the court declared insufficient. The requests were denied. On the fourth day of the trial appellant again moved for a change of venue and the motion was denied. On the eighth day of the trial and because appellant indicated he felt unable to properly conduct his defense, the court offered to appoint the public defender of Yolo County to assist. A week-end continuance was granted to enable appellant to consult with the public defender and on the following Monday the public defender asked to be relieved principally upon the ground that he objected to being required to defend a defendant who had means to employ counsel. The court granted the public defender's request and the trial proceeded. At the same time John C. Harris, Esq., who appeared throughout as counsel for appellant, asked permission to withdraw upon the ground that he was in material disagreement with appellant as to how the case should be conducted and felt he could not conscientiously go forward. The prosecution objected and the court refused to grant Mr. Harris' request. Having set forth the foregoing, appellant contents himself as to discussion by citing the provisions of the California Constitution concerning the right to counsel; Penal Code Section 686, subdivision (2), containing a provision to the same effect; and case authority for the proposition that the right to counsel extends to every person accused of crime whether or not he is himself a lawyer. Respondent does not quarrel with these statements of the law but insists the facts shown by the record justify the actions of the court complained of. We have read the record carefully and have concluded that this assignment of error cannot be sustained.

Appellant charges that his counsel was incompetent, but he points to nothing in the record that supports this charge save to say that his counsel was young and inexperienced. This may be, but our examination of the record shows that in so far as appellant allowed him to participate in the trial his counsel performed creditably and competently. He conducted the voir dire examination and the range of his questions indicated a thorough knowledge and appreciation as to what ought to be inquired into for the protection of appellant in the section of the jury. He developed a number of grounds for challenge for cause which he made and which were allowed by the court. We can see no fault in his work in this regard. From that point on, however, he was permitted to have little share in the conduct of the trial, appellant himself taking over almost exclusively and conducting his own defense. Appellant appears to have industriously limited his counsel's participation to the voir dire examination and to the gathering of witnesses and the like, save for the examination of one or two minor witnesses. It further appears that during the months that elapsed between the pleas and the trial appellant negotiated with at least two attorneys of his own selection who were experienced in criminal trial work, but in the end did not engage either because he deemed their demands for compensation unreasonable. It does not appear their demands could not have been met by him and in view of the probable length of the trial and the amount of time to be consumed in preparation therefor we do not think that the demands of these attorneys were so unreasonable as to justify appellant's failing to engage either when, for all the record shows, he was financially able to do so. Moreover, the record shows that appellant, an experienced attorney in his own right, did conduct his defense with competence and his argument of his cause was not only extensive but was well organized...