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 336 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 1/2 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 proceeding from the finding of the indictment to the passing of judgment upon the appellant, can escape the disturbing and unpleasant impression, that the accused was tried, convicted and sentenced because of who he was, and not because of what he had done under the charges against him. . . .
"The trial judge, in violation of express law, neglected and failed to make a frank disclosure of the bias and prejudice so clearly manifested by the exhibition of gross partisanship . . .
"Contemplating the flood of error that streams through this record from both the prosecution and the trier of the accused, we cannot bring ourselves to suppose that a judgment of conviction grounded thereon will be permitted to stand unredressed in this court."
This last clause could be taken by this court as a confession of the weakness of all the points urged in appellant's brief — at least to include in a brief any such language usually means that the attorneys presenting the brief have no confidence in any argument contained therein. Such language could only be intended to prejudice this court improperly in passing upon this appeal. The intemperate language used in such conclusion has compelled more than the usual examination of the record — that is, an examination of other parts of the record than those discussed in the brief, because the quotations from the evidence contained in appellant's brief hardly bear out the intemperate language herein quoted by us therefrom. *Page 337 [1] After such examination of the record in this case, we are of the opinion that there are but two questions of law raised in this voluminous brief that really merit any discussion by this court: Point one: That section 170 of the Code of Civil Procedure, as amended in 1927 (Stats. 1927, p. 1403), made it necessary for the trial court, within five days after presentation and filing of the affidavit by which the appellant attempted to charge bias and prejudice, to file his consent in writing with the clerk that the action or proceeding be tried before another judge, or to file with the clerk his written answer admitting or denying any or all of the allegations contained in the statement filed herein, and that he should set forth any additional fact or facts material or relevant to the question of his disqualification.
It appears from the argument of appellant that his construction of this section is that he could file the affidavit after the issues of fact had been fully tried, even after a judgment had been rendered by the court, and after an extension of time had been granted within which to make a motion for a new trial. When this time had been extended to within two or three days of the time within which sentence would have to be pronounced or a new trial automatically awarded defendant only because it had notbeen so pronounced, then and not until then did appellant file his affidavit, which affidavit itself showed that he was relying upon facts which were within his knowledge during the course of the trial, and long before his motion for a new trial was made. It does not appear from said affidavit whether or not the feeling objected to was caused by the evidence introduced in such trial. If his contention is right as to the construction of the section regarding the disqualification of judges, and if his affidavit was sufficient, it would have actually precluded the sentencing of defendant under the judgment of conviction within the time required by law, automatically resulting in a new trial being granted, whether or not a new trial should have been granted in accordance with his notice of motion for a new trial. However, as we read this section, it does not so provide. It might be, in a case where a sworn statement objecting to the hearing of such matter, or to the trial of any issue of fact or law in such action or proceeding before such judge, and setting forth a fact or facts constituting a ground or grounds of disqualification of such *Page 338 judge, had been filed, as provided by section 170 of the Code of Civil Procedure, with reference to matters that were only learned by the defendant immediately prior to the pronouncement of judgment. But this is a question which we do not have before us, and we do not have to decide it if such affidavit must be filed before evidence is introduced.
In the instant case, the statement filed does not contain anystatement of facts, showing disqualification of the trial judge, although the language used by the trial judge in the case of People v. Johnson and Lavine, when those defendants were before the court for sentence, during the time that the instant case was on trial, was probably unnecessary, and such comments might be construed by some people to be a reflection upon anyone connected with the Julian case. Yet there is nothing in this affidavit attempting to charge bias of the trial court, which in any way shows a disqualification of the judge to proceed to hear the motion in this case, or which could be twisted into a statement that he in any way believed, at the time referred to, that defendant was guilty as charged in the information. In fact, no point was made of it by the appellant until long after the court had granted extensions of time for the hearing of his motion for a new trial to such a period of time, when defendant's attorneys must have known that to file the same, if it were in compliance with section 170 of the Code of Civil Procedure, asconstrued by them, would of necessity cause a new trial to be granted by reason only of the fact that the trial court would thereby be without power to impose sentence within the time required by law.
At the time of the ruling in the case of Keating v.Keating, 169 Cal. 754 [147 P. 974], section 170 of the Code of Civil Procedure was in an entirely different form than it is to-day. It is true, of course, that almost all defendants, after they have been found guilty by a judge sitting without a jury in criminal matters, consider that the trial judge is prejudiced against them by reason of such verdict. The section as it now reads is evidently worded to avoid the difficulty that would be experienced under the new statute if it had been worded so that the affidavit could be filed after evidence had been introduced or after the decision of the court. That is evidently the reason for the insertion of the provision in the new section 170: "The statement of a party *Page 339 objecting to the judge on the ground of his disqualification shall be presented at the earliest practicable opportunity,after his appearance and discovery of the facts constituting the ground of the judge's disqualification, and in any event before the commencement of the hearing of any issue of fact in the action or proceeding before such judge." (Italics ours.)
[2] In the given case, it is not clear whether the trial judge struck out the so-called affidavit of prejudice because it was filed too late, or because it did not contain any statementof fact that would make it "appear probable that by reason of bias or prejudice of such . . . judge . . . a fair and impartial trial cannot be had before him". The statement as to the reference by the trial judge to the grand jury of the matters brought out in evidence before the trial judge could not in any way show any prejudice against defendant. The quoted statement made by the trial judge in sentencing the defendants Johnson and Lavine in another case does not on its face show any prejudice on the part of the trial judge against the defendant here. The conclusion in the affidavit presented, that the trial court was prejudiced, was based and limited by such affidavit itself solely and only on the facts alleged in the affidavit; which facts, weighed in any light which is proper, could not be considered as showing any prejudice on the part of the trial court against this defendant. This being so, point one is not well taken.
The foregoing disposes, to our minds, of the questions raised under points 1, 2, 3 and 4.
[3] Another point which we are asked to consider is the construction placed upon section 470 of the Penal Code. The construction placed by appellant upon this section is apparently that the first twenty-eight words of said section, to wit: "Every person who, with intent to defraud, signs the name of another person, or of a fictitious person, knowing that he has no authority so to do, to . . . is guilty of forgery," — cannot be construed as we have just quoted it with the last four words only added, but that for some reason it must be construed in toto with words that have no bearing on the instant charge. It is not necessary that the whole of said section be violated by a person to make him guilty of a crime denounced therein, because other than the portions quoted by appellant there is in such section also a proviso *Page 340 that — "Every person who . . . counterfeits or forges . . . or utters, publishes, passes, or attempts to pass, as true and genuine, any of the above-named false, altered, forged or counterfeited matters, as above specified and described, knowing the same to be false, altered, forged or counterfeited, with intent to prejudice, damage or defraud any person; or who, with intent to defraud, alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence . . . is guilty of forgery." Thus is appears that the acts charged against appellant and the proof adduced at the trial of the cause would clearly show violations of the portions of section 470 of the Penal Code, which we have quoted in this opinion.
We do not think the "saving and redeeming power" of section 4 1/2 of article VI of the Constitution is necessary to be invoked in this case in order to sustain a judgment of conviction. As we find no errors in the rulings of the trial court, and since there was sufficient evidence to justify the verdict, the judgments of conviction on counts III, IV and V are affirmed, and the order appealed from is affirmed.