4 P. 977 | Cal. | 1884
Appeal from an order denying a motion for a new trial, and from a judgment of conviction of murder in the second degree. The motion was made upon statutory grounds, but the case itself has been argued and submitted mainly upon one of them, namely, misconduct of the jury by which a fair and due consideration of the case was prevented. The alleged misconduct consisted of certain acts committed during the progress of the trial by the district attorney, his associate counsel, and some of the jurors. The acts were: That during the trial the district attorney, at his expense, treated some of the jurors to intoxicating liquors; that he presented one of them with a bottle of bitters, entertained him at his house with a dinner, and after dinner escorted him homeward; and that during the trial he and his associate counsel, at their expense, entertained the same juror and also a witness in the case at an oyster supper at which liquors were drank.
The affidavits read on the hearing of the motion show: That the trial of the case lasted over a month, commencing on the 10th of December, 1883, and ending, with intermissions, on the 11th of January, 1884; that at each adjournment the jury were allowed to separate under the instructions of the court; that during the recesses and adjournments of the court it was the practice of counsel engaged in the trial of the case —as- well those for the defense as those for the prosecution ■—jurors, and witnesses to “interchange courtesies” by treating and drinking with some of the jurors at the bars of saloons. Twice during the progress of the trial the district attorney treated two or three of the jurors. Once he invited, to dinner one of them, who was at his house to get from him a bottle of bitters which he had promised the juror two
The legal presumption is that jurors perform their duty in accordance with the oath they have taken (People v. Williams, 24 Cal. 31), and that presumption is not overcome by proof of the mere fact that during a trial, which lasted over thirty days, two or three of the jurors, after the adjournment of the court for the day, drank a few glasses of liquor at the expense of the district attorney; that one of them partook of a dinner at the house of the same officer, under circumstances which rendered the act of invitation necessary; and of a supper at the hotel of his associate counsel, under like circum
There is nothing in People v. Gray, 61 Cal. 164, 44 Am. Rep. 549, which conflicts with this conclusion. In that case the jury had, during the trial, drank freely, if not grossly, of liquors procured by themselves. Upon the submission of the case to them for their deliberation some of them took -bottles of whisky with them into the jury-room, and there was evidence tending to show that one of them, while deliberating on the verdict, drank so much as to unfit him for the proper discharge of duty. There is no doubt that the actual drunkenness of a juror will always vitiate a verdict. But here there is no showing that any juror was under 'the influence of liquor while on duty, or that any liquor was drank at any time while on duty; and there is nothing in the acts charged from which the court could reasonably infer that they, in the slightest degree, influenced the result.
There is no basis for the charge that the sheriff improperly spoke to one of the jurors about the evidence in the case. The alleged newly discovered evidence of a fact known at the trial, as to a matter about which one of the witnesses testified, is no ground for a new trial. No diligence is shown for not using the fact as evidence. Besides, it merely tended to impeach the evidence of the witness on a former trial; and a new trial is not grantable for merely impeaching evidence. There was no objection taken to the alleged transgression of
We concur in the judgment, and in the conclusion reached in the foregoing opinion: McKinstry, J. ■ Ross, J.