94 Cal. 112 | Cal. | 1892
The appellant was convicted of murder in the first degree, with punishment fixed at imprisonment for life, and now appeals from the judgment. For a reversal of the judgment he relies upon the following assigned errors of law: 1. The court erred in admitting in evidence the written confession of defendant, under objection; 2. The court erred in excluding exhibit B from the jury, it being the evidence of what occurred on the discharge of the jury at the first trial of the action, and in sustaining the people’s objection thereto; 3. The court erred in denying defendant’s motion to be discharged from custody, and in pronouncing judgment on said defendant; 4. The court erred in instructing the jury to find for the people upon the pleas of former acquittal, former conviction, and former jeopardy.
The confession of the defendant was clearly admissible. It appears to have been an entirely free and voluntary statement. The fact that defendant’s sister was also under arrest for the commission of the homicide, and that the confession may have been made to free her from suspicion of guilt, is a matter that in no way tends to invalidate it as material and competent evidence. Again, this sister testified at the trial that immediately
It is claimed that the court erred in excluding exhibit B as evidence in the case. Exhibit B was that portion of the transcript of the proceedings of the previous trial, taken by the phonographic reporter, showing what occurred at the time the jury were discharged by the court for the reason that they were unable to agree upon a verdict.
When this case was called for trial, counsel for defendant announced themselves as not ready, by reason of the absence of one Hood, the party who acted as short-hand reporter at the previous trial, but suggested that if the district attorney would stipulate to admit the certified copy of the reporter’s notes in evidence in lieu of the presence of the reporter, they were ready to proceed. The district attorney agreed to admit the transcript, to wit, exhibit B, in evidence, whereupon the trial proceeded. When defendant attempted to introduce the exhibit in evidence, counsel for the people waived the objection that it was not the best evidence, but objected, upon the ground that it was irrelevant, immaterial, and incompetent, and the court sustained the objection. We will not enter into a discussion as to the effect of the stipulation, or as to the professional proprieties which should exist among attorneys in carrying out stipulations made in good faith. _
If the evidence was improperly rejected, but the defendant was not prejudiced thereby, it was not material error; or if the evidence had been admitted before the jury, and could not have affected the character of the verdict, then a violation of the stipulation, if it occurred, did the defendant no injury.
The fact that the defendant was not present at the time the jury was discharged, his presence having been waived by his counsel, does not affect the question of his jeopardy; for his objection to the discharge of the jury at that time could not have defeated the validity of the court’s action. It follows that the defendant wholly failed to establish his special defense by any evidence, and. under such circumstances it was the duty of the court to instruct the jury to find for the people thereon. (Warners v. State, 20 Tex. App. 109; O’Connor v. State, 28 Tex. App. 288.)
There remains but one additional assignment for consideration, and in a case of the importance of the present one, it is a matter of regret that occasion for it should ever have arisen. When the jury were about to retire to consult as to their verdict, the court handed them forms of verdicts as to the pleas of former acquittal, former conviction, and once in jeopardy, and instructed them to find for the people upon these pleas, and have their foreman sign and date them and return them into court, with their verdict upon the merits of the case. The jury, having retired, returned into court and announced that
Mr. Swinnerton. — “We do not insist "on that,—the recording at this time.”
The Court. — “The clerk may then record those verdicts afterwards. They were brought in under the instructions given to the jury.”
The jury was then discharged. The jury did not orally declare, nor did their foreman nor any member of the jury read aloud, any verdict on the pleas of former acquittal, former conviction, or former jeopardy. Such verdicts were not read aloud to the jury by any person, nor was anything asked them to establish what verdict, if any, they had agreed upon as to the issues raised by such pleas. But counsel for defendant expressly waived the declaring and recording of said verdicts at the time, and agreed that they might he recorded afterwards, as appears in this bill of exceptions, and all the facts constituting such waivers are therein set forth.”
Section 1404 reads: “ 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 right.”
The record clearly shows that irregularities existed in the manner in which these various verdicts were returned into court,— irregularities occasioned without necessity, and which could have been easily avoided. In cases of felony, and especially where a defendant is charged with the crime of murder, the only correct procedure is to adhere strictly to the statute. Any other course is a dangerous innovation, which generally results in a miscarriage of justice.
We think the irregularities here shown do not affect the validity of the judgment, and are such as come squarely within the provisions of the Penal Code cited.
Let the judgment be affirmed.
McFarland, J., Harrison, J., Paterson, J., De Haven, J., and Sharpstein, J., concurred.