People v. Hancock

BARNARD, P. J.

The defendants, brothers, were jointly charged with the crime of misdemeanor, to wit, petty theft, with two prior convictions of felony. It was charged in the information that on March 19, 1934, they unlawfully took certain designated property of a named person of the value of $25. It was further alleged that one of the defendants had suffered a prior conviction for forgery, the other one for grand theft, and that both had theretofore been convicted of a violation of section 593' of the Penal Code. The defendants admitted the prior convictions and pleaded not guilty to the charge of petty theft. They were convicted by a jury and have appealed from the judgment and from an order denying their motion for a new trial.

[578]

The only point raised is that the court erred in denying the motion for a new trial, which was based upon the contention that the jury had received evidence out of court other than that resulting from a view of the premises. In support of the motion for a new trial there was introduced the affidavit of one of the jurors to the effect that during the progress óf the trial she had read an article which appeared in a local newspaper, reading as follows:

“Petty Theft Counts May Lead to Prison. R. M. Hancock and Clarence Hancock went on trial today before Superior Judge Allan B. Campbell charged with petty theft. The state alleges they stole a rifle and clothing belonging to Martin Bengocheas. In the state’s information it is also alleged the defendants have been convicted of other felonies. Should a conviction result from the petty theft charge the defendants will be liable to sentence under the habitual criminal act, according to the district attorney’s office. Attorney Fred Hoar is representing the defendants and Norman Main, deputy district attorney, is prosecuting for the state. ’ ’

In opposition thereto, the district attorney filed an affidavit by this same juror to the effect that while she had read this item in the newspaper the reading of the same did not affect her decision as a juror in this case, that she did not take the same into consideration, and that to the best of her knowledge and belief said news item did not in any way influence any of the other jurors in arriving at their verdict. It is argued that while this matter could not have been considered as first presented to the trial court under the rule that jurors will not be heard to impeach their own verdict, that rule has no application here since the matter now appears from an affidavit of the juror filed by the district attorney in support of the verdict.