People v. Northey , 77 Cal. 618 ( 1888 )

Paterson, J., concurring.

I concur. I think, however, that the admission of Woods’s testimony as to the conversation he had held with damage was error. I agree in saying that the error was not prejudicial, on the grounds,—1. That no objection was made to it because incompetent; and 2. That it is of such a character it did not tend, in my opinion, to prejudice the defendant before the jury.

A petition for á rehearing in Bank having been filed by the defendant, the following opinion was rendered thereon on the 25th of January, 1889:—-

Beatty, C. J.

In his petition for a rehearing, appellant relies altogether upon points that were neither urged nor suggested in the argument upon which the case was submitted for decision; and the question is presented whether we are to be governed in criminal cases by the same rule that has uniformly obtained in civil cases, viz., that the court will not consider upon petition for rehearing any point waived, either expressly or tacitly, at the argument.

Comparatively few of the cases in which this rule has been applied are to be found reported, but we cite the following: Grogan v. Ruckle, 1 Cal. 197; Atherton v. Supervisors, 48 Cal. 160; Dougherty v. Henarie, 49 Cal. 686. It is even more emphatically true now than it was at the date of these decisions that the proper dispatch of the business of the court requires that cases should be fully argued before submission without reservation of other points to be used on petition for rehearing; and certainly the policy and necessity of the rule are as cogent in criminal as in civil cases. It is' true that in cases involving life or liberty the court should apply with less strictness a rule merely designed to expedite the dispatch of business, and doubtless the court would, in a case of peculiar or real hardship, entirely dispense with it. But when, as in this case, counsel originally charged with the defense of the petitioner has ably presented all the rulings of the trial court affecting the verdict, and after the decision of these points other counsel petitions for a rehearing upon points purely technical, and relating merely to the form of the judgment, we see no reason for departing from a rule so essential to the disposition of the business of the court.

Rehearing denied.

Paterson, J., McFarland,, J., Works,!., Sharpstein, !., and Thornton, !., concurred.