23 Minn. 291 | Minn. | 1877
A motion in arrest of judgment in a criminal case cannot be predicated upon matter not appearing upon the face of the record. 3 Wharton Am. Cr. Law, § 3043 ; 1 Bish. Cr. Pro. § 850.
Conceding, then, that the list of persons selected by the board of county commissioners to serve as grand jurors was not properly certified and signed by the chairman of the board, prior to its delivery to the clerk of the district court, and that the statute in this regard is anything more than directory, this was a matter of which the defendant could
2. The question which was raised in this ease, upon the application to continue the trial of the indictment, was one addressed to the sound discretion of the trial court, and its decision is not reviewable, except for manifest abuse of judicial discretion. State v. McCartey, 17 Minn. 76. The record before us presents no such case. The continuance was sought for the purpose of obtaining the testimony of one Cullen, as a witness to facts testified to by him on the preliminary examination of defendant before the committing magistrate. Upon the facts disclosed it was at least doubtful whether sufficient diligence had been used to secure his personal attendance, or whether it could be procured in case the application was granted. Moreover, the testimony which he gave on the examination was read to the jury, under a stipulation of the parties, from the minutes kept by the magistrate, and no suggestion is made impeaching their accuracy or correctness. In view of these circumstances it is difficult to perceive how defendant was prejudiced by the decision.
3. Defendant claims that a new trial ought to have been granted because of the misconduct of two members of the petit jury. After retiring for deliberation, Lindley, one of the jurors, in answer to a call of nature, absented himself from the jury-room for one or two minutes, by permission of the officer having the jury in charge. It affirmatively appears, however, that he remained in the custody and sight of the officer during the whole period of his absence, and that no communication whatever took place between him and any one. A separation under such circumstances raises no suspicion against the conduct of the juror, or the purity and integrity of the verdict, and furnishes no ground for anew trial.
The conduct of the juror, Brisbane, though unaccompanied by any wrongful intent, is not equally free from criticism
The record before us does not purport to disclose all the testimony: the point made upon the insufficiency of the evidence cannot, therefore, be considered.
Judgment affirmed.