1 Cal. 379 | Cal. | 1851
By the Court,
The defendant was convicted of the crime of murder at the March term of the district court held in and for the county of Nap^a, and from the judgment rendered on such conviction an appeal is taken to this court. Numerous causes have been urged by counsel for the appellant, as constituting error in the proceedings of the district court, some of which are plausible, but none of which do we deem tenable.
The first point made by the appellant is, that the judge before whom the cause was tried had no authority to preside at the trial, and that, consequently, all the proceedings before him were coram no-njudice and void. This objection is based upon the assumption that the judge, who is conceded to be the legally appointed and qualified judge for the ninth judicial district, had no power to exercise any of the functions of his office beyond the limits of his own district. The argument in support of this proposition is urged upon constitutional grounds solely. So far as statutory authority is concerned, it is not denied that the court was regularly held by an officer exercising the powers conferred upon him by an act of the legislature. The question is, therefore, a question purely of constitutional interpretation.
Section one of Article six of the constitution declares that the judicial power of the state shall be vested in a supreme court, in district courts, in county courts, in justices of the
It is urged that, inasmuch as a district judge is required to be appointed for each district, the legislature can neither require nor empower him to perform any judicial duties beyond the prescribed territorial limits of his district. The reason given for this construction is, that the people of each district have the constitutional right to have justice administered between them by such judges only as they have themselves elected. This seems, however, to have been, in no respect, the intention of the constitution, for that instrument subjects the districts to “ such alteration from time to time as the publie “ good may require.” Had it been the intention of the constitution that no judge should hold a district court in any counties except in those which had participated in his election, this power to alter the districts in such manner and at such times as the legislature should deem conducive to the public good, could scarcely have been conferred. The reason given in support of the appellant’s proposition, we apprehend, is overthrown by the very section of the constitution from which his argument is deduced.
Our constitution must be construed with reference to the known changes in the organic laws of the respective states. In most of the states there are district or circuit judges, having powers and jurisdiction corresponding to the powers and jurisdiction of the district judges under the constitution of this state. In some of the states, these judges are appointed by the govern- or by and with the advice and consent of the senate; in others,
Numerous objections are raised to the proceedings on the trial, to which the answer is apparent, that no objection was made at the time, and the defendant must be deemed to have assented. Such are the objections to the empanelling of the grand jury, the indorsement of the bill of indictment by the foreman, the want of signature thereof by the district attorney, the irregularity in the arraignment of the defendant and in the summoning and empanelling of the trial jury, the form of the verdict, and the time within which the sentence was pronounced. Even if any irregularities were committed in these respects, a court of appeal cannot review them, where no objection was made to them in the court below, and more especially where this court cannot see that such irregularities affected, in the slightest degree, the administration of substantial justice.
A motion was made to change the place of trial from Nappa county to one of the adjoining counties. The motion was founded on affidavits made by the defendant and others. The defendant states in his affidavit, in general terms, that a fair
“ Sec, 830. A criminal action, prosecuted by indictment, “ may be removed from the court in which it is pending, on the “ application of the defendant, on the ground that a fair and “ impartial trial cannot be had iu the county where the indict* u ment is pending.
“ Sec. 331. The application must be made in open court, “ and in writing, verified by the affidavit of the defendant, and “ a copy must, be served upon the district attorney at least one “ day before the application is made to the court.
“ Sec. 332. If the court be satisfied that the representation 11 of the defendant is true, an order shall be made for tbe re- “ moval of the action to the nearest district court of an adjoin- “ ing county which is free from the like objection.”
Under this statute, we deem the affidavits upon which the application was made, entirely insufficient even to justify the court in ordering a change of the place of trial. Affidavits for such a motion must state the facts and circumstances from which the conclusion is deduced that a fair and impartial trial cannot be had. The conclusion is to be drawn by the court and not by the defendant and his witnesses, and the court must be satisfied from the facts and circumstances positively sworn to in the affidavits, and not from the general conclusions to which the defendant may swear, or which his witnesses may depose that they verily believe to be true. In the case at bar the court was not satisfied that the representation of the defendant was true ; and we are of the opinion, that no court should be satisfied of tbe necessity or propriety of removing the trial of an indictment from one county to another, by such
Another objection raised respects the qualification of some of the persons who sat on the trial jury. Many persons, called as jurors, were peremptorily challenged by the defendant, many were rejected by the court after examination as to their qualifications, and others were permitted to be sworn and to sit on the jury, after objection by the defendant, founded upon the fact that they had formed and expressed an opinion. The jurors belonging to this latter class stated, on their examination, that they had formed and expressed an opinion from reports, but thought they could sit on the jury without bias, that evidence would change their opinion, and that they would be governed by the evidence adduced. The court properly held such persons to be competent to sit on the jury.
There is some diversity in the decided cases upon the point under consideration. But neither the English decisions, nor the decisions of any of the states, have gone so far in excluding jurors where they had formed or expressed an opinion, as the decisions of the courts of Yew York. (See Ex parte Vermilyea, 6 Cow. 555; People v. Vermilyea, 7 Cow. 108; People v. Mather, 4 Wend. 229; People v. Jewett, 3 Wend. 314; Rogers v. Rogers, 14 id. 131; The People v. Mary Bodine, 1 Denio, 281.) In the case last cited, the circuit judge ruled that, in order to disqualify a person from being a juryman, it was necessary that he should have formed & fixed and decided opinion, such as it would require evidence to remove. This ruling of the circuit judge was disapproved of by the supreme court, and a new trial granted upon that point in connection with some other points. The great difficulty of procuring a jury in that cause, in which more than three hundred persons were called as jurors and set aside, induced the legislature, upon the recommendation of the commissioners of the code, to settle, by legislative enactment, the rule of law as laid down substantially by the circuit judge. That enact-
The rule as laid down in our statute has been held to be the true rule in numerous decisions. Thus in The State v. Williams (3 Stew. 454) it was held, in a capital case, that it was not ground of challenge of a juror, that he had formed or expressed an opinion, upon common report, of the guilt of the prisoner, if the juror believed that such opinion would have no influence in the formation of his verdict, should the evidence on the trial be different from the report of the facts. To the same effect substantially are the cases of Pollard v. Commonwealth, (5 Rand. 659;) Brown’s case, (2 Leigh, 769;) Spooner v. Commonwealth, (2 Virg. Cas. 375;) Queensberry v. State, (3 Stew. & Port. 308;) Durell v. Mosher, (8 Johns. 445.)
The last objection urged against the legality of the proceedings at the trial, respects the charge of the judge to the jury. Several instructions were given by him, which were excepted to by the defendant’s counsel. These instructions are returned on this appeal, but no portion of the testimony given to the jury is returned. The correctness or incorrectness of the charge to the jury cannot be determined, without the court having before it the testimony from which alone can be seen the applicability of the charge. Instructions are always given with reference to the facts proved to the jury, and an instruction that would be perfectly sound in one case, might be unsound in another. The propositions laid down, by the court are all cor
In conclusion, we have only to add, that the defendant has been convicted by a jury, and that there is nothing in the record before us to induce the belief that he has not had a fair and impartial trial on the merits, or that he has been deprived of any legal or technical benefit or advantage given to him by law.
The judgment of the district court must be affirmed.
Ordered accordingly.