People v. Boggs

20 Cal. 432 | Cal. | 1862

Norton, J. delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.

We do not see how the verdict of the jury could have been affected by so slight a mistake as that which occurred in reading the testimony of the witness Cunningham. The door from which McLaughlin issued is stated to have been nearly northeast from where Boggs stood, and the witness stated that Boggs’ face was nearly south. It was read to the jury that Boggs’ face was nearly north. The jury stated that they differed as to the testimony of the two witnesses, Hickle and Cunningham. The fair meaning of this is, that they differed as to the testimony of these witnesses upon points or portions of the affair as to which they both testified. But Hickle did not say anything as to the direction in which Boggs’ face was turned, and there is hence no good reason for supposing that the jury had any doubts upon that point, or deemed it of any importance. It was not of sufficient importance to attract the notice of the defendant’s counsel at the time it was read, and no correction was suggested or exception taken to the reading. Neither could the defendant have been prejudiced by the Court giving the desired information by reading a memorandum taken by another person instead of reading its own minutes, if it had taken any, or stating the testimony from, recollection. The Court for this purpose adopted this memorandum as its own statement, and there is no suggestion that the memorandum was in any respect erroneous. Nor was it necessary upon stating this testimony to instruct the jury that they were exclusive judges of the fact. We do not find in the Criminal Practice Act the same provision in this respect which is contained in the Civil Practice Act, even if such statement could be considered as a part of the charge of the Court.

The fact that the officer having charge of the jury was absent some minutes from the room in which he had placed them, it not appearing that they were allowed to separate; and the fact that some person outside the jury room spoke to a juror and that some of the jurors spoke to two persons outside, it not appearing what was said or that it had any reference to the trial; and the fact that after the jui*y had agreed upon then* verdict and were brought into the Court room, they were allowed to remain there in the presence of other persons while the officer went to the porch in front of the Court room, and waited some minutes for the Judge, it not appearing that any communication was had with the jury in the meantime, are not sufficient grounds for requiring, a new trial. When a jury retire to deliberate upon then* verdict, the officer having them in charge is sworn to keep them together in some private and convenient place, and not to allow any person to speak to them, nor to speak to them himself. This is a very proper precaution to guard the jury against being tampered with. But it is easy to see that a literal enforcement of this duty must in many cases be impossible, and when there is no reason to suppose that any injury has resulted from a few accidental or careless remarks passing between the jury and strangers, there can be no necessity for ordering a new trial. Notwithstanding some cases in which great strictness has been observed, the cases collected by Mr. Waterman justify his remark that the far more reasonable and just rule, and which is sustained by the weight of authority, is: “ that where the interference of strangers with the jury is unattended with corruption in the latter, and has not been prompted by a party, and it does not appear that any injustice has thereby been done, the verdict will not be disturbed, whether the cause be civil or criminal, a capital trial or otherwise.” (2 Graham & Waterman on New Trials, 317.)

The error in the initial of the middle name of the defendant appearing in the verdict handed to the clerk by the jury, was not mar terial. They found “ the defendant J. M. Boggs ” guilfy. It was enough that they found the defendant, whom they had in charge, guilty. The words “ J. M. Boggs ” might have been rejected as surplusage, and their presence under the circumstances could work no injury. Judgment affirmed.