Berman

I concur in the judgment. I do not concur entirely in the criticisms of appellant’s brief, although it is too perfervid in its eloquence. While we may find that the positions taken by appellant are not sound, nevertheless, his propositions are clearly stated, together with abundant citations of authority which appellant thinks are in support of his position.

The verified statement by which appellant sought to disqualify the trial judge from further proceeding in the case is found in the clerk’s transcript, beginning at page 103. It was filed on the eighth day of August, 1930, only two days before the time when, in the regular course of procedure, the power of the court to pronounce sentence would have expired. When the time has thus expired without the imposing of sentence the defendant becomes entitled to a new trial, if he so demands. (Pen. Code, secs. 1191 and 1202.) It is argued by the attorney-general that section 170 of the Code of Civil Procedure could not have been intended to apply in favor of a party who has delayed his attempt to disqualify the judge to so late a date as was done in this case, and that if the defendant and appellant is sustained in his contention here,…

This is an appeal from an order denying motion for a new trial and from judgments of conviction on counts III, IV and V of grand jury indictment which contained five counts. Trial was had before the judge sitting without a jury. After 322 pages of the “brief” of the appellant, the most strongly emphasized points argued by appellant appear in the “conclusion” thereof, starting at page 323. In this conclusion, such phrases are used as: “. . . are saturated with errors of law too gross even for the saving and redeeming power of section 4£ of article VI itself. ... No candid and impartial mind can scan the testimony . . . without an uneasy and restless sense of the legal insufficiency of such evasive and equivocal testimony to support a judgment of conviction. ... No candid and impartial mind can scan the testimony . . . upon which appellant was convicted on counts IV and V of the indictment without embracing the conclusion . . .

“A total abdication of candor and impartiality is required to distort acts of the appellant, mentioned in counts IV and V of the indictment, into a scheme or plan to defraud the very corporation ... No candid and impartial mind, reviewing the course of this…

I dissent. Not that I am unable to agree with each of my respected associates in many of the different and most substantial factors which constitute the reasons for the conclusion reached by each of them respectively, but that in a few of the more important questions submitted by appellant to this court do I find myself unable to concur with the views expressed in either of the opinions hereinbefore set forth and upon which the affirmance of the judgment and the denial of the motion for a new trial must rest.

At the outset, in connection with the animadversions cast by one of my associates upon the brief presented in behalf of appellant, although fully recognizing the fact that in some respects the language to which objection is made, as addressed either to an appellate court or to any other tribunal, is of a character not deserving commendation, nevertheless, in my opinion, it should be viewed more from the standpoint of an earnest and zealous advocate at the bar, rather than from the more placid and seclusive situation of a jurist in chambers with nothing before him other than the “cold record” and the “dusty tomes of the law”. In any event, the fault or dereliction of the…