58 Cal. 262 | Cal. | 1881
Lead Opinion
The defendant was indicted, tried, and convicted in the Superior Court of Mendocino County of the crime of murder in the first degree, and having moved for a new trial, which was denied in the Court below, he prosecutes this appeal. The grounds upon which the motion for a new trial was based were the following:
“ The Court misdirected the jury in matters of law, and erred in the decisions of questions of law arising during the progress of the trial;
“ 2. The verdict is contrary to the evidence;
“ 3. That before a juror was called the defendant was not informed by the Court or under its direction that if he intended to challenge an individual juror he must do so "when the juror appeared and before he was sworn; and
“ 4. That two of the jurors who were impaneled and accepted as jurors in said case, and who constituted two of the members of the jury, were not assessed on the last assessment roll of Mendocino County, or the property belonging to them.”
The second ground relied upon by the defendant, that the verdict was contrary to the evidence, will he first considered by the Court; and here it may be remarked, that there was no material or substantial conflict in the evidence.
There were but three persons present when the homicide was committed, the deceased, the defendant, and the prosecuting witness, one Mels Offer. The account given of the trans
It is claimed that the confession of the defendant was improperly admitted in evidence. But it was clearly a voluntary confession, and there is nothing in the circumstances under which it was made that would have justified the Court in excluding it.
It is very clear from the foregoing evidence that the case was one of murder in the first degree, and the jury could not,
2. The next point in the case is, that the failure of the Court to instruct the prisoner upon his rights as to challenging jurors, was error. It is true that § 1066 of the Penal Code does provide that “ before a juror is called the defendant must be informed by the Court, or under its direction, that if he intends to challenge an individual juror he must do so when the juror appears and before he is sworn.” The object of this provision of the law is to protect the rights of the defendant in the' matter of challenging jurors. He should be informed of the fact that if he desires to challenge any particular juror, he must exercise that right before the juror is sworn; but it appears from the record in this case that the defendant’s rights in this respect were fully understood by him and his counsel, and the privilege of challenging jurors was exercised to a large extent in the case. It is true that the Court omitted a duty imposed by law, but it clearly appears that the defendant was not, in any manner, prejudiced by the error complained of, and such being the case, the omission of the Court in the matter referred to, constitutes no sufficient ground for reversing the judgment. “After hearing the appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” (Penal Code, § 1258.)
3. The third point is that the names of two of the jurors were not on the assessment roll for the previous year, and therefore they were not competent jurors, under § 198 of the Code of Civil Procedure.
We have given this question a careful examination and have arrived at the conclusion that it constitutes no ground for reversal. The authorities on this point are conflicting, but it seems to us that the better reason is with the cases which hold that such an objection as the one now being considered does not entitle a party convicted to a new trial, or to a judgment of reversal on appeal. It was so held by the Court in The People v. Sanford, 43 Cal. 29. The point made in that case was that “the conviction was invalid, because not found by a competent jury. The statute requires the juror
The only remaining assignment of error relates to the charge of the Court to the jury, and to it we can see no substantial objection. The principal objection to the charge made on the argument was, that the judge read to the jury the following sections of the Penal Code: 187, 188, 189, 190, 192, 194, 195, 196, 197, 198, 1096, and 1097. But which Penal
Judgment and order affirmed.
Myrick, J., Ross, J., and Thornton, J., concurred.
Dissenting Opinion
I dissent. The record shows that when charging the jury the Court said: “I will try to give you what I consider the law applicable to this case. In the first place, in order to save the reporter the trouble of taking down all I may read, I would state that I propose to read from the Penal Code §§ 187,188,189,190, 192, 194, ¿95,196,197,198,1096, and 1097. If counsel on either side desire that any other sections of the code shall be read, they will suggest it.” (The Court then read the sections of the Penal Code above mentioned.)
The contents of the sections referred to are not given.
The Penal Code (§ 1093) provides that, “ If the charge be not given in writing, it must be taken down by the phonographic reporter.”
It is quite true that writing includes printing, but the numerals which we find in the record do not include any written or printed matter. They refer to a book outside of the record in which may be found something that the Court read to the jury.
'McKee, J., and McKinstry, J., concurred in the opinion of Sharpstein, J.