No. 10,512 | Cal. | Jul 1, 1880
Lead Opinion
The defendant was indicted in the Superior Court of Yolo County for the crime of embezzlement; and being tried upon such indictment, the result was a verdict of guilty. .
The verdict was as follows: “ We, the jury, find the defendant guilty, as indicted, to the sum of |¡90. L. B. Adams, foreman.”
This verdict was written in the jury-room, and was handed to the clerk by the foreman after the jury had returned into the court-room, and were seated in the box. The clerk then read the verdict to the jury from a scrap of paper which was handed to him by the foreman, and they thereupon declared that it was their verdict. The jury was then discharged by the Court from further consideration of the case. The verdict was not recorded by the clerk in the minutes until after the jury was" discharged, and had left the court-room. When the defendant was called for sentence, his counsel moved the Court for a judgment of acquittal and discharge. The Court denied the motion, and sentenced the defendant to imprisonment in the State prison. To this ruling and judgment, the defendant duly excepted, and now prosecutes this appeal.
The only remaining question in this case is, whether this Court is called upon to reverse the judgment of the Superior Court for the irregularity complained of. It is very obvious, that the proceedings in the case were not in strict conformity to § 1164 of the Penal Code, which provides, that, “ when a verdict is given, such as the Court may receive, the clerk must immediately record it in full upon the minutes, read it to the jury, and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case.”
In this case, the verdict, written by the foreman, was read to the jury, and thereupon the jurors all agreed that it was their verdict. Was the departure from the strict letter of the Code such as to require a reversal of the judgment ? Our first impression was, that the irregularity was fatal to the judgment; but a careful consideration of the question, and of the provisions of the Penal Code, has led us to a diffez’ent conclusion. If the clerk had first pasted the verdict in his rough minutes, and had then read it to the jury, the letter of the law would have been complied with ; and it is difficult to see what additional weight or authority would have been given to the verdict by that proceeding. It is a matter of fact, that the rough minutes of the clerk are often entered upon loose slips of paper, and from them they are transcribed into the minute-book; and when the minutes arc written up, the original minutes are in many instances cast aside, as being no longer useful; and if that had been done in the present case, no one would contend that there had been any irregularity in the proceeding.
There are other provisions in the Code, however, a reference to which will remove all doubt on the point under consideration. Section 1404 of the Penal Code provides, that “ neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial
The above principle and reasoniong apply with full force to the case now under consideration ; and to hold that the omission complained of affected the validity of the judgment would be to set aside and totally disregard §§ 1258 and 1404 of the Penal Code.
The verdict, although not very artistically worded, is sufficient in substance. (People v. Leehey, No. 10,384, 4 Pac. C. Law J. 75.)
Judgment and order affirmed.
Thornton, J., Myrick, J., and McKinstry, J., concurred.
Dissenting Opinion
I dissent. It is conceded that the Court, by discharging the jury before the verdict had been recorded, committed an error. But it is classified as a technical error, which did not affect the substantial rights of the parties, nor tend to the defendant’s prejudice in respect to such a right. And §§ 1258 and 1404 of the Penal Code are cited, to prove that it is an error which should be disregarded. The case of People v. Rodundo, 44 Cal. 538" court="Cal." date_filed="1872-07-01" href="https://app.midpage.ai/document/people-v-rodundo-5437814?utm_source=webapp" opinion_id="5437814">44 Cal. 538, is also cited, in support of that position.
In that case, it was held that the omission to call the names of the jurors before receiving the verdict was not a fatal error.
As the sole object of having the name's called is to ascertain whether all the jurors are in fact present, it would seem to follow that the omission to call them would be a grave error, unless some other method equally well adapted for the ascertainment of the fact were resorted to; because “ if all do not appear (upon the call of their names), the rest, shall be discharged without giving a verdict.” (Pen. Code, § 1147.) But the Court in that case seems to have assumed that all were present, because it was not shown that they were not. A call of their names would have disclosed whether they were or not, and probably no method more simple and efficacious than this could be devised. But in that case, one of the safeguards provided by the Legislature for the protection of both parties was removed; and in this case, we are asked to remove another. And we may safely predict that “ the end is not yet.” There is a provision which requires the jury to be present in Court when the verdict is rendered. A failure to comply with that provision would not necessarily prejudice a defendant any more than the omissions which this Court has sanctioned. If a jury after agreeing upon a verdict should sign it in the jury-room and hand it to an officer of the Court, and then disperse without going through the form of being present when the verdict was received and recorded, it would, in almost every case, be impossible for the defendant to prove that the verdict would have, been different in fact, if all the forms prescribed by law had been complied with. And unless he could show that, it seems to me that, under the doctrine of the case of The People v. Rodundo, supra, which is approved in this case, the verdict could not be disturbed, for so wide a departure from the form prescribed as that, even.
But I am inclined to believe that a construction more in consonance with sound reason may be given to §§ 1258 and 1404 of the Penal Code without doing violence to the language of those provisions. When it cannot he seen that a defendant
For these reasons, I think that the judgment of the Court below should be reversed.