28 Cal. 465 | Cal. | 1865
By the Court,
The defendant was indicted for murder, tried and found guilty in the second degree.
Defendant moved to set aside the indictment on the ground that Charles Glould, one of the grand jurors, at the time he
The answers of the juror, Kind, are such that we should not be justified in saying that the Court erred in allowing the challenge on the part of the prosecution. The most that can be said is, that the answers do not disclose a clear case, and where error is not clearly shown, the ruling of the District Court will not be disturbed.
There was no error in refusing to strike out the testimony of Eisner.
The Court having refused to permit defendant to prove by Mclntire, Ford, Harford, and others, that at the public meeting on the evening of the homicide, deceased drew his knife upon a stranger, and would have cut him had he not been prevented, also, that he slapped the naked knife' against the cheek of another man, at the same time using threatening language, this ruling is assigned as error. Defendant was admitted not to have been present at the time the transactions offered in evidence took place, and defendant’s counsel did not offer to show that these acts were brought to the knowledge of defendant. The counsel for the prosecution at the time stated that he did not object to their giving in evidence any
Ho exception was taken to the ruling in rejecting Carnahan’s testimony to declarations of defendant made an hour or so before the homicide. Besides they were inadmissible. (People v. Wyman, 15 Cal. 74.)
The defendant offered to prove by Starr what a witness testified at a former trial, said witness having since died. The Court rejected! the testimony, on objection by the District Attorney. The testimony having been closed, Court adjourned till the next morning. On the opening of Court in the morning, the District Attorney stated that he was inclined to think the testimony ought to have been admitted, and offered to allow the case to be opened and the testimony introduced, to which suggestion the Court assented. The defendant then raised the objection that his witness had gone home, whereupon the Court offered to give him any reasonable time to procure the witness, or to allow him, if he preferred it—the District Attorney consenting—to read the testimony of the deceased witness from the minutes of his testimony taken down by the Clerk on the former trial. Defendant finally concluded to read the evidence from said minutes—still reserving his exceptions—and it was so read. It is claimed that these proceedings were erroneous and that the defendant was injured thereby. We do not see how the defendant was injured. The error at first committed was afterwards rectified by the Court. We have read all the testimony in the case, and from the character of the testimony we cannot see that, in this instance, it could be a matter of the slightest consequence at what particular point in the defense it came in. The testimony appears, upon its face, to have been very fully and very well taken down, and in that form it is quite evident that it is much more satisfactory than the mere recollection
The observations, already made apply to all the testimony rejected. Besides, there is much testimony uncontradicted in the case upon all the points covered by the rejected evidence, and, if admitted, it would only have been cumulative upon points about which there does not seem to have been any controversy. But we think there was no error in the rejection of evidence.
We think the evidence entirely sufficient to sustain the verdict. It is possible, as suggestéd by defendant’s counsel, that the jury, if they erred at all, leaned to the side of mercy in finding the prisoner guilty of murder in the second degree. But if so, he surely has no reason to complain on that ground.
The only instruction complained of was copied from the Act relating to “ crimes and punishments,” (Laws 1850, p. 232, Sec. 37.) There is no error in giving this instruction.
At the close of the testimony the Pistriet Judge, who had thus far presided at the trial, was informed by telegraph that his presence was immediately required at home, in consequence of the dangerous illness of a member of his family. It was thereupon agreed by the parties, the prisoner consenting thereto, that the Judge of the Sixth Judicial District might sit during the remainder of the trial; and, at the request of the presiding Judge, in pursuance of this agreement, the Judge of the Sixth District appeared at the hour appointed for opening the Court on the following morning, and held the Court till the conclusion of the trial and the rendition of the verdict. The testimony was all in, with the exception of the testimony of the deceased witness, which was afterwards read from the minutes of the Court,, as before stated. The Judge of the Sixth District heard the argument, charged the jury,
The defendant now insists that the calling of the Judge of the Sixth Judicial District to preside, after the commencement of the trial, and with the express consent of the defendant, was error. But if not, that it was error for the Judge of the Fourteenth District to resume his place upon the bench and conduct the proceedings subsequent to verdict.
It is not surprising that the first point was not very distinctly ■made on the oral argument. It is squarely made, however, in the brief, notwithstanding the embarrassment under which counsel must be supposed to have labored in repudiating an express agreement after taking the chances of an acquittal, and losing. This course, it is true, is not without precedent, but the practice is not to be commended, and it cannot be supposed that an experiment of the kind will be successful, unless the Court is bound by some controlling rule of law.
In this case we think the verdict is not vitiated by the violation of any principle of law. The Judge of the Sixth District was authorized by the statute, upon the request of the Judge of the Fourteenth District, to hold the Court. He held the Court upon such request. The Court Ayas a regularly authorized tribunal, having jurisdiction to try the cause. Although it is desirable that the same Judge who commences the trial should sit until it is completed—and in many cases, doubtless, it would be impracticable to do otherwise—yet, in some instances, as in this, there may be no inconvenience resulting from the taking up of the case by another Judge
Appellant claims that the Judge of the Sixth District having taken charge of the case with the consent of the prisoner, it was incompetent for the Judge of the Fourteenth District to again sit in the case without his consent.
After the rendition of the verdict, the Judge of the Fourteenth District resumed his seat, and acted in the subsequent proceedings. Defendant prepared his statement and moved for a new trial before said Judge, and the motion was heard and decided without any objection to his acting. No objection was made to the Judge of the Fourteenth District resuming" his functions in the case—although his leaving the bench was made one of the grounds of the motion for a new trial— until the time for passing sentence had arrived, and all other resources had failed, when the objection was taken for the first time on motion in arrest of judgment.
These proceedings taken and voluntarily prosecuted by the defendant himself before the Judge of the Fourteenth District operated as a waiver of any objections to his acting further in the case, and, upon defendant’s own theory, it would have been improper for the Judge of the Sixth District, after the denial of the new trial, to again resume a seat on the bench for the purpose of passing sentence ; and had he in fact done so, the defendant would, doubtless, have again- interposed an objection on that ground. But we think on other grounds the Judge of the Fourteenth District did not err in passing sentence. As before stated, the Court was properly organized. It was a legal Court, and had jurisdiction of the case. The
“ The first error assigned is that the proceedings were irregular in this: That the motion for a new trial was passed on by a Court composed of different members from those before whom the trial was had. This fact only appears by the minutes, in which the names of the Justices composing the Court on the motion and in the previous stages of the trial are recited. No objection to the hearing of the motion by the Justices then present and acting was made by the prisoner. .
“We intimated in a previous case the danger of a reversal of a judgment of conviction for this cause, though no express decision was made upon the point. The question has been more fully argued. We think, under the circumstances here, that the defendant cannot maintain the error assigned. His failure to object to the Justice not sitting before, was itself a waiver of exception for this cause. The objection does not go to the power of the Justice to act, but is merely in the light of an exception to him because it was more proper that the Justice who sat during the trial, and who, therefore, may be supposed to be better acquainted with the history of the case, should pass upon the final motion which involved a review of the previous proceedings. If the defendant was willing that the Justice should sit, lie-should not be allowed the double advantage of trying his motion before him and of appealing from the decision if adverse, and also the advantage of contesting the propriety of his sitting. Besides, we think that the rule we have recently laid down in People v. Conner, and other cases, covers this assignment. We there held 'that the proceedings of the Court of Sessions were to be construed*476 like those of the District Court, and that the same presumptions attach to them as to those of the District Court. If, from resignation or other such cause, one of the Justices, after a trial, should not be able to sit on the motion for a new trial, unquestionably this would not prevent the matter from being passed upon by another Justice acting in the place of the one thus incapacitated. We must presume that a sufficient reason existed to justify this change in the Bench—in other words, that the Court acted properly in the premises, when nothing is shown to the contrary. These remarks are made upon the assumption that the point, in the absence of these matters of explanation, is well taken. But upon a reconsideration of the subject we are not disposed so to hold. We think that the ends of justice might generally be better subserved if all the members of the Court who heard the case on the trial should sit on the motion for a new trial; but this is not a statutory right or obligation; and it would be going too far if we were to avoid the action of a Court legally constituted, and having full jurisdiction of the subject, merely upon the suggestion that it was not so constituted qs to the particular members as more probably to insure an intelligent and satisfactory decision. Cases might arise where this point alone, or in connection with other matters, would entitle a party to a new trial or to a hearing of his motion before the Justices presiding on the trial; but in the absence of a showing of some special cause, we think this single circumstance does not constitute a ground of reversal of the judgment.”
These views meet our approbation. It follows that the judgment must be affirmed, and it is so ordered.
Mr. Justice Curret expressed no opinion.