People v. Grace

E. V.Grace, also known as Thomas Lacey, and Robert Newell were jointly charged with the crime of robbery. Newell finally pleaded guilty and Grace pleaded not guilty. The trial of Grace then proceeded and he was adjudged guilty. He appeals from the judgment and from an order of the trial court denying his motion for a new trial.

During the course of the proceedings leading to his conviction appellant was before several judges of the superior court. Both he and Newell were arraigned before Judge Keeteh on April 20, 1925. Newell then entered a plea of not guilty and his trial was set for May 22, 1925. The minutes of the court on that occasion show the following as to appellant: “Defendant Bari B. Grace stands mute, and plea of ‘Not Guilty’ is ordered entered by the Court and trial set for May 22, 1925. Defendant Earl B. Grace is granted trial as to his sanity, which trial is set for April 29, 1925.” The title of the cause preceding these minutes, and also the minutes recording Newell’s plea and the setting of the day of his trial, is “The People of the State of California vs. Robert Newell and Thomas Lacey.” The next appearance of appellant was before Judges Keeteh and Reeve, sitting together, on April 29, 1925. The minutes of the proceedings of that day are below the caption, “The People of the State of California vs. Earl B. Grace ” and show: “Trial is continued to May 22, 1925.” At the next appearance, which occurred on the date last mentioned, the judge presiding was Judge Elliott Craig. The minutes entered on that occasion are under a caption showing the names of both Newell and Grace as defendants, and recite: “At request of defendants, trial is continued to June 10, 1925. Defendants waive the sixty day statutory period.” Judge Keeteh presided on the day of the next appearance, June 10, 1925, and the minutes of that day are under a, caption showing the names of both Newell and Grace as

We now turn to the reporter’s transcript of the proceedings at the trial. After the disposition of certain preliminary matters, and before any witness was called, the following occurred: “ [A Deputy Public Defender, representing appellant] : If your Honor please, there is another matter which we might take up at the present time in regard to the Defendant Grace. At the time of his arrest on this charge he was under the disability of having been declared an insane person and was at that time in Norwalk State Hospital. I am under the impression myself that after his arrest he was discharged; that is to say, a discharge was issued by the authorities of Norwalk State Hospital. ... I looked through the files to see if that discharge was in the files and I do not find it. When I saw it, it was in the possession of [a] Deputy District Attorney. The Defendant Grace now states that he has never been discharged, and the authorities at Norwalk—I found from his mother that he was still carried on the rolls of that institution. The Court: That would have no bearing on this case, it would seem. [The Deputy Defender]: I think it would in this respect, that if he had been declared to be insane and never has been restored to, or discharged from that disability, he could not be tried, and I am under the impression that he

Between the time when the trial was concluded and the time when appellant’s motion for a new trial was presented to the trial court, Mr. Groene, the present counsel for appellant, was substituted in the place of the public defender. The record made at the argument of the motion for a new trial shows the following: “Mr. Groene: I would like at this time.to have permission to file a written motion for a new trial. This, of course, will be only general grounds. The Court: Well, file that. Mr. Groene: That is an amendment. I think that in this amendment I mentioned the fact that the defendant is now an inmate of the state institution at Norwalk, for the insane, having escaped from there, and that at the time of the perpetration of this crime, if he was present, that he was incompetent to carry out a crime of that nature, and that he really should be sent back to that institution in order that he might be further treated until he is well of the ailment that is troubling him, which I understand that he is a dope fiend, but he escaped from there and a few days after this crime was committed which he denies that he had anything to do with. . . . Now, . . . it seems to me that ... he being an inmate now of an institution at Norwalk, he should be sent back there instead of being sent to a prison in this state, and on that ground I think that the trial should not have been held, as far as he is concerned. The Court: Have you got an affidavit to that effect? Mr. Groene:.No, just merely a motion, but

Upon this state of the record three points are made by appellant: 1. That Judge Grail was bound by the order of Judge Keetch to the effect that appellant should have a preliminary trial upon the question whether he was insane; 2. That until the preliminary trial upon the issue of sanity was had appellant could not be tried upon the question whether he had committed the act out of which the charge against him arose; 3. That the right to a separate and preliminary trial as to appellant’s sanity, under the order made by Judge Keetch, could not be waived by appellant’s counsel. Disposition of these points will be made in their sequence as stated."

[1] Upon the first point it seems manifest that appellant’s position is correct. In a recent case (People v. Moronati, 7 Cal. App. 17 [ 232 Pac. 991 ]), we decided practically the same question. In that action the defendant entered, in a certain department of the superior court, a plea of not guilty and a certain special plea. He was tried in that department and the jury disagreed. The cause was later transferred to another department of the trial court, where a second trial was had. We determined that the special plea stood at the second trial, notwithstand

Whether Judge Keetch’s order remains effective at all is the next question to be considered, and that question is embraced in the second point made by appellant. Was the trial court in error in proceeding with the trial that was had, in the absence of a trial under the order of Judge Keetch? [2] It is provided by section 1368 of the Penal Code: “If at any time during the pendency of an action up to and including the time when defendant is brought up for judgment on conviction a doubt arises as to the sanity of the defendant, the court must order the question as to his sanity to be submitted to a jury; and the trial or the pronouncing of the judgment must be suspended until the question is determined by their verdict, and the trial jury may be discharged or retained, according to the discretion of the court, during the pendency of the issue of insanity.” The language of this section amply upholds the validity of Judge Keetch’s order, at the time when it was made. The record presents no showing as to the evidence upon which the order was based. Upon the score of appellant’s condition of mind there is nothing in the record of the day upon which the order was made except the order itself. Particularly, there is no reporter’s transcript of the proceedings of that day. Under such circumstances it is evident that we must assume that the judge did his duty in making the order. That assumption imports that he proceeded in accordance with the mandate of section 1368 and that, therefore, and upon sufficient evidence, a doubt was created in his mind as to the sanity of appellant. So the order stood as to Judge Keetch, so it also stands as to the judge who conducted the trial that was had, unless something has occurred since the

[3] We have already seen that the order was not discharged by a compliance with its terms. No trial was had pursuant to its requirement. And the record furnishes no basis for a claim that it was abrogated or discharged in any other manner except, possibly, by waiver. Was there a waiver of the right secured by the order? This question we proceed now to discuss. Not only did the judge who tried the cause overlook the fact that the order for a preliminary trial had been made by Judge Keetch, but both the deputy district attorney and the deputy public defender who were at the trial were in the same difficulty. It is evident that they both had overlooked Judge Keetch-s order. If they had not, they would have reminded Judge Grail of the existence of the order, for it would have been their duty to do so. The right secured under the order was not waived by the failure of the deputy district attorney in this regard, although it was his duty to have made the reminder if he knew of the existence of the order, for he was without autliprity to waive any right of appellant. Nor do we think there was a waiver because of the silence of the deputy public defender. Upon the score of waiver, and resolving the situation solely from the standpoint of the question of waiver, no more damage could result to the rights of appellant from the failure of the defender to remind Judge Grail of the existence of Judge Keetch's order, than from his failure to remind the former officer of a similar order which had been made by himself. And it seems obvious that a waiver could not have resulted under the circumstance last mentioned. If the order had been made by Judge Grail he would doubtless have remembered it as a matter of fact, but, whether it was made by Judge Keetch or by himself, he was bound to know that it had been made, as a matter of law. A due regard for the preservation .of the safeguards surrounding those charged with the commission of crime will permit no other conclusion. It is pertinent here to make a few observations which relate not only to the particular point now under discussion, but to others which remain for consideration. [4] The law abhors the punishment of insane persons for the commission of acts out of which

[5] In determining whether the benefits accruing to appellant under Judge Keeteh’s order were waived, it is necessary to examine another circumstance shown by the record. The minutes of May 22, 1925, with Judge Craig presiding, show this: “At request of defendants, trial is continued to June 10, 1925. Defendants waive the sixty days’ statutory period.” The waiver contemplated, specifically, by the second sentence of this entry was, of course, a waiver of the right secured by section 1382 of the Penal Code, which provides, in part: “The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed ... If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment, or filing of the information.” The question now to be considered is whether, in making this express waiver, and in requesting that “the trial” be continued to June 10, 1925, appellant waived the right secured to him by the order of Judge Keeteh granting him a preliminary trial as to his sanity. A determination of this question will be materially aided by an inspection of the minutes of the court from those of date April 20, 1925, containing the order of Judge Keeteh, to those entered while Judge Craig was presiding, on May 22, 1925. It will be observed that the minutes of April 20th show that a plea of not guilty was entered for appellant and that his trial was thereupon set for May 22d, but that immediately following this

We return to the minutes of the court. Appellant was before Judges Keeteh and Reeve on April 29th, the date set for the trial of the issue as to his sanity. The minutes of that day show: “Trial is continued to May 22, 1925.” This entry related to the trial of the preliminary question as to sanity, for no other trial had been set for April 29th. This truth is so obvious as to require but the mere statement of it. When, therefore, May 22d was reached, the day upon which Judge Craig presided, this was the situation: The date had arrived through continuance, upon which the issue of sanity was to be tried. The date had also arrived, under the original setting, upon which “the trial” was to be had. But at the moment when Judge

[6] When Judge Crail took the bench on July "15th, ■ 1925, the right of the prosecution to demand “the trial” was still in a state of suspension.' Did anything' occur before him to revive that right? Did anything occur before him that amounted to a waiver of appellant’s right to a trial as to his sanity? For the purpose of answering these questions we have above set forth the colloquy between the judge and the deputy public defender which took place at the commencement of the trial that Judge Crail conducted. Little more than a perusal of the remarks of the two is necessary to an answer to the questions just stated. The deputy public defender did not insist upon a trial as to sanity under the order of Judge Keetch, but he did insist that “the trial” could not proceed, for the reason that appellant had been confined in an institution for the insane and that he had not been discharged from that custody up to the time of the commission of his alleged crime, although he stated that he was under the impression that such a discharge had been granted after appellant was arrested. It is true that the colloquy between the trial judge and the defender was colored by the • incorrect belief, indulged in by both, that a discharge of appellant after his arrest could affect the question whether he was insane at the time when it is alleged that he committed the crime with which he was charged. Nevertheless we think it sufficiently appears that the defender insisted that appellant could not b'e tried because he was insane and that the judge held that the trial must proceed because appellant’s sanity was to be presumed. On the whole, we are satisfied that the defender said nothing that worked a waiver of appellant's right under the order of Judge Keetch.

We have quoted the record made at the argument of the motion for a new trial, not as bearing on the question of waiver, but as showing that appellant insisted through his counsel in the trial court, to the last moment, that he was insane. That record is set forth for the purpose, also, of correcting certain erroneous statements made by the trial judge at the time, and which tend somewhat to obscure the circumstances surrounding the trial.' The judge said:

Appellant’s third point, as above stated, is that his counsel were without authority to waive his rights under the order of Judge Keeteh. Because of the conclusions above reached we find it unnecessary to decide that question.

Appellant presents other points which arise, as he contends, under the record of the trial that ended in his conviction, but we need not pause to consider them.

The order of Judge Keeteh has never been discharged or abrogated. The trial before Judge Grail was therefore a nullity. The cause must be remanded for a trial upon the question of appellant’s sanity or insanity as contemplated by the order of Judge Keeteh. After that trial appellant will further be dealt with as required by law.

Judgment and order reversed and cause remanded for further proceedings in accordance with this opinion.

Finlayson, P. J., and Craig, J., concurred.